Shareholders in the corporate governance system. The essence of corporate governance

A.P. Shikhverdiev

The work focuses on many definitions of the concept of "corporate governance" and identifies three main areas of corporate governance: property management of a joint-stock company, management of the company's production and economic activities, and management of financial flows.

The establishment of market relations in Russia and the increasing role of joint-stock companies in the development of the state economy and the well-being of citizens have necessitated awareness of the importance of the problem of corporate governance, the emergence of which is inevitably associated with the transition to market economic conditions. In the modern Russian economy, corporate governance is one of the most important factors determining not only the level economic development countries, but also the social and investment climate.

What is corporate governance? This problem is quite complex, relatively new and continues to develop. There are many definitions of this concept.

The Organization for Economic Co-operation and Development (OECD) puts it this way: “Corporate governance refers to the internal means of running and controlling corporations... Corporate Governance also defines the mechanisms by which the goals of the company are formulated, the means of achieving them and controlling its activities are determined. In a broad sense, corporate governance is seen as a process of exercising power by business entities, making decisions within the framework of property relations based on the existing production, human and social capital ... is determined by the nature of the target settings for the activities of the enterprise and its management, types of control, interests and property;

corporate governance is also assessed as an organizational model, which is designed, on the one hand, to regulate the relationship between company managers and their owners (shareholders), on the other hand, to harmonize the goals of various stakeholders, thereby ensuring the effective functioning of companies;

The system by which the management and control over the activities of business organizations is carried out. The corporate governance framework defines the rights and responsibilities of the individuals who make up the corporation, such as members of the board of directors, managers, shareholders, and other stakeholders, and establishes the rules and procedures for making decisions on the affairs of the corporation. Corporate governance also provides a structure on the basis of which the goals and objectives of the company's activities are set, the ways and means of achieving them are determined and the company's activities are controlled;

The system or process by which the activities of corporations accountable to shareholders are managed and controlled;

The corporate governance system is organizational model through which the company represents and protects the interests of its investors. This system can include everything from a board of directors to executive pay schemes and bankruptcy filing mechanisms;

In the narrow sense, there is the management of joint-stock companies or various organizational structures that unite them, where the shareholder acts as the subject of management, and the share is the bearer of the right to make decisions, and corporate law in the broad sense is a mechanism for the optimal combination of the various interests of shareholders and accomplices in order to maximize the effectiveness corporation development;

corporate capital management of a joint-stock company is the management of its shares by their owners, which is opposed to “direct” capital management;

· Corporate governance is based on taking into account the interests of shareholders and their role in the development of the corporation. This is management based on the right of ownership, corporate communications, corporate development strategy and culture, taking into account the traditions and principles of collective behavior. It is distinguished by wide participation in joint stock ownership, the formation of complex options for the interweaving of capital on the basis of equity capital, and the changing composition of interested participants... corporate governance solves the problems of organizational and legal business management, optimization of organizational structures, intra- and inter-company relations in accordance with the postulated goals of activity;

In the broadest sense, corporate governance includes in general all relations that in one way or another affect the position of shareholders and behavior joint-stock company. According to this approach, the subjects of corporate governance are persons who have rights in the field of corporate governance of a joint-stock company - shareholders, directors - members of the board of directors, director - the executive body and members of the executive bodies of the joint-stock company;

· the activities of the bodies of economic companies in the development (preparation and adoption) of a specific management decision, its execution (implementation) and verification of its implementation.

The above definitions make it possible to reduce corporate governance to three main areas: property management of a joint stock company, management of the company's production and economic activities, and management of financial flows. Therefore, corporate governance is a system of interaction between the company's management bodies, shareholders and stakeholders, which reflects the balance of their interests and is aimed at obtaining maximum profit from the company's activities in accordance with applicable law and taking into account international standards.

Corporate governance in the narrow sense is a system of rules and incentives that encourage company managers to act in the interests of shareholders. In a broad sense, corporate governance is a system of organizational, economic, legal and managerial relations between entities economic relations whose interest is related to the activities of the company. In turn, the subjects of corporate governance are understood as: managers, shareholders and other interested parties (creditors, employees of the company, partners of the company, local authorities). All participants in corporate relations have common goals, including:

Creation of a viable profitable company that provides the production of high-quality goods and jobs, as well as having high prestige and an impeccable reputation;

· increase in the value of the company's tangible and intangible assets, the growth of its share prices and ensuring the payment of dividends;

· obtaining access to external financing (capital markets);

Gaining access to labor resources (cadres of managers and other employees);

increase in jobs and general economic growth.

At the same time, each participant in corporate relations has its own interests, and the difference between them can lead to the development of corporate conflicts. In turn, good corporate governance contributes to the prevention of conflicts, and when they occur, their resolution through the provided processes and structures. Such processes and structures are the formation and functioning of various management bodies, regulation of relationships between them, ensuring equal treatment of all parties, disclosure of appropriate information, accounting and financial reporting in accordance with proper standards, etc.

Rice. 1 Corporate governance system

What is the difference between the interests of subjects of corporate governance? Managers receive the bulk of their remuneration, usually in the form of guaranteed wages, while other forms of remuneration play a much smaller role. They are interested, first of all, in the strength of their position, the stability of the company and reducing the risk of exposure to unforeseen circumstances (for example, financing the company's activities mainly through retained earnings, and not external debt). In the process of developing and implementing a development strategy, companies, as a rule, tend to establish a strong long-term balance between risk and profit. Managers depend on the shareholders represented by the board of directors and are interested in renewing their contracts to work in the company. They also directly interact with a large number of groups that show interest in the company's activities (company personnel, creditors, customers, suppliers, regional and local authorities, etc.) and are forced to take into account, to one degree or another, their interests. Managers are under the influence of a number of factors that are not related to the tasks of increasing the efficiency and value of the company or even contradict them (the desire to increase the size of the company, expand its charitable activities as a means of increasing personal status, corporate prestige, etc.).

In turn, shareholders can receive income from the company's activities only in the form of dividends (that part of the company's profit that remains after the company pays off its obligations), as well as through the sale of shares in the event of a high level of their quotations. Accordingly, they are interested in the high profits of the company and the high price of its shares. At the same time, shareholders bear the highest risks: non-receipt of income if the company's activities, for one reason or another, do not make a profit; in the event of bankruptcy, companies receive compensation only after the requirements of all other groups are satisfied. Shareholders tend to support decisions that lead to high profits for the company, but also associated with high risk. As a rule, they diversify their investments among several companies, so investments in one particular company are not the only (or even the main) source of income, and they also have the opportunity to influence the company's management in only two ways: 1) when holding shareholders' meetings, through the election of one or other composition of the board of directors and approval or disapproval of the activities of the company's management; 2) by selling their shares, thereby affecting the share price, as well as creating the possibility of the company being taken over by shareholders who are unfriendly to the current management. Shareholders do not directly interact with the company's management and other interested groups.

There is another group of participants in corporate relations, called other interested groups (“accomplices” / stakeholders), among which:

1) Lenders:

They receive profit, the level of which is fixed in the contract between them and the company. Accordingly, they are primarily interested in the stability of the company and guarantees for the return of the funds provided. Not inclined to support solutions that provide high profits, but are associated with high risks;

Diversify their investments among a large number of companies.

2) Employees of the company:

First of all, they are interested in the sustainability of the company and the preservation of their jobs, which are their main source of income;

They directly interact with management, depend on it and, as a rule, have very limited opportunities to influence it.

3) Partners of the company (regular buyers of its products, suppliers, etc.):

Interested in the stability of the company, its solvency and continuation of activities in a certain area of ​​business;

Directly interact with management.

4) Local authorities:

First of all, they are interested in the stability of the company, its ability to pay taxes, create jobs, and implement social programs;

Directly interact with management;

They have the ability to influence the activities of the company mainly through local taxes.

As you can see, the participants in corporate relations interact with each other in different ways, and the sphere of discrepancy between their interests is very significant. A properly built corporate governance system should minimize the possible negative impact of these differences on the process of the company's activities. The corporate governance system formulates and coordinates the interests of shareholders, formalizes them in the form of the company's strategic goals and controls the process of achieving these goals by corporate management.

The basis of the corporate governance system is the process of building and effectively implementing internal control over the activities of the company's managers on behalf of its owners (investors), because it was thanks to the funds provided by the latter that the company was able to start its activities and created a field for the activities of other interested groups.

The foregoing allows us to conclude that corporate governance has two aspects: external and internal. The external aspect focuses on the company's relationship with the socio-economic environment: government, regulators, creditors, securities market participants, local communities and other stakeholders. The internal aspect is focused on relationships within the company: between shareholders, members of the supervisory, executive and auditing bodies.

The corporate governance system is being created to solve three main tasks facing the corporation: ensuring its maximum efficiency; attracting investments; fulfillment of legal and social obligations.

The organization of an effective corporate governance system is associated with certain costs, including the costs of attracting specialists, such as corporate secretaries and other professionals. However, the benefits of such a system far outweigh the costs. This becomes clear if, when calculating economic efficiency take into account the losses that may be faced: investors - as a result of the loss of invested capital, employees of firms due to job cuts and loss of pension contributions, the local population - in the event of a collapse of companies.

A proper corporate governance system is needed primarily by open joint-stock companies with a large number of shareholders, doing business in industries with high growth rates and interested in mobilizing external financial resources in the capital market. However, its usefulness is undeniable for JSCs with a small number of shareholders, CJSCs and LLCs, as well as for companies operating in industries with medium and low growth rates. The introduction of such a system makes it possible to optimize internal business processes and prevent conflicts by properly organizing the relations of companies with owners, creditors, potential investors, suppliers, consumers, employees, representatives of state bodies and public organizations.

In addition, many firms sooner or later face limited domestic financial resources and the impossibility of a long-term increase in debt burden. Therefore, it is better to start implementing the principles of good corporate governance in advance: this will ensure the future competitive advantage companies and thereby give it the opportunity to get ahead of rivals.

Now it is necessary to consider the elements that make up the system of effective corporate governance. These elements are:

1. Shareholder rights: The corporate governance system should protect the rights of shareholders and ensure equal treatment of all shareholders, including small and foreign shareholders.

2. Operations of the board of directors: the board of directors is required to provide strategic direction to the business, exercise effective control over the work of managers, and be accountable to shareholders and the company as a whole.

3. Information disclosure and transparency: the corporate governance system should provide timely disclosure of reliable information about all significant aspects of the functioning of the corporation, including information about the financial position, results and prospects of activities, the composition of owners and the management structure.

I would especially like to note that the term "corporate governance", which is used in modern Russian, is an approximate translation of the English term "Corporate governance". This term itself in modern usage is relatively new and therefore, from our point of view, it is necessary to draw a line between the terms "corporate governance" and "corporate management".

Corporate management is an activity professional specialists in the course of conducting business operations; it focuses on the mechanics of doing business.

Corporate governance is at a higher level of company management. It focuses on corporate structures and processes that ensure the implementation of the principles of fairness, responsibility, transparency and accountability in the company's activities.

The intersection of the functions of corporate governance and corporate management takes place mainly in the development and monitoring of the company's strategy and internal control system.

Relationship between corporate governance and corporate management

Corporate governance as a system creates, first of all, a mechanism for protecting the interests of all economic agents, including creditors. If the company's corporate governance is ineffective, then this gives rise to a struggle for control between various stakeholders: current and potential shareholders, managers, and personnel. Often, one of the instruments of this struggle is the bankruptcy procedure of an enterprise, since the current legislation allows initiating bankruptcy proceedings even against a relatively stable enterprise by Russian standards. Since the bankruptcy procedure (in the form of bankruptcy proceedings or external management) actually means a default on all obligations of the enterprise, it is external creditors who become the injured party in the corporate struggle. Moreover, the struggle for control over the enterprise distracts management and shareholders from operating and investment activities. In anticipation of the outcome of the struggle, as a rule, large investments, even the most necessary ones, are slowed down. All this has the most negative consequences for the financial condition of the enterprise. In turn, effective corporate governance provides joint-stock companies with the following advantages:

First, facilitating access to the capital market. The practice of corporate governance is one of the most important factors determining the ability of companies to enter domestic and foreign capital markets. The implementation of the principles of good corporate governance provides the necessary level of protection for the rights of investors, so they perceive well-managed companies as friendly and capable of providing an acceptable level of return on investment.

Secondly, a decrease in the cost of capital. Joint-stock companies that adhere to high standards of corporate governance can achieve a decrease in the cost of external financial resources used by them in their activities and, consequently, a decrease in the cost of capital as a whole. The cost of capital depends on the level of risk assigned to the company by investors: the higher the risk, the greater the cost of capital. One type of risk is the risk of violation of the rights of investors. When investor rights are well protected, the cost of equity and debt decreases. It should be noted that there has been a clear recent trend among leveraged investors (i.e. lenders) to include corporate governance practices as a key criteria used in investment decision-making. Therefore, the implementation of effective corporate governance can reduce the interest rate on loans and borrowings.

Corporate governance plays a special role in emerging markets, which do not yet have the same strong system of protection of shareholder rights as in developed countries. market economy. The level of risk and the cost of capital depend not only on the state of the country's economy as a whole, but also on the quality of corporate governance in a particular company. Joint-stock companies that have managed to achieve even small improvements in corporate governance can receive very significant advantages in the eyes of investors compared to other JSCs operating in the same industries.

Third, promote the growth of efficiency . As a result of improving the quality of corporate governance, the accountability system is being improved, thereby minimizing the risk of fraud by company officials and their transactions in their own interests. In addition, control over the work of managers is being improved and the connection between the remuneration system of managers and the results and activities of the company is being strengthened, favorable conditions are being created for planning the succession of managers and sustainable long-term development of the company.

Proper corporate governance is based on the principles of transparency, accessibility, efficiency, regularity, completeness and reliability of information at all levels. If the transparency of a joint-stock company increases, investors will be able to gain insight into the business operations. Even if the information coming from a company that has increased its transparency turns out to be negative, shareholders benefit from a reduction in the risk of uncertainty. Thus, incentives are formed for the board of directors to conduct a systematic analysis and risk assessment.

Compliance with corporate governance standards helps to improve the decision-making process that can have a significant impact on the efficiency of the financial and economic activities of the company at all levels. High-quality corporate governance streamlines all business processes occurring in the company, which contributes to the growth of turnover and profit while reducing the amount of required capital investments.

It is also important to note the international aspects of the implementation of corporate governance. A corporation that implements effective corporate governance contributes to taking into account the interests of a wide range of stakeholders, as well as the accountability of its management bodies, both to the company itself and to its shareholders. In turn, an efficiently operating corporation helps to attract investments, both foreign , and domestic and focused on longer-term ownership.

In connection with the growing role of corporate governance in the field of attracting investments and the efficiency of companies, in 1999 the principles of corporate governance of the Organization for Economic Cooperation and Development (OECD) were published, which are a set of standards and guidelines that underlie the formation, functioning and improvement of corporate governance systems. These principles have become the basis for the implementation of corporate governance in both OECD and non-OECD countries. Subsequently, the OECD principles were adopted as one of the standards for the sustainability of financial systems by the Financial Stability Forum.

The OECD Corporate Governance Principles are not legally binding and do not aim to provide detailed provisions that should be reflected in the laws of individual countries. Their task is to determine the goals of achieving effective corporate governance and propose means to achieve them. The implementation of the principles will serve both the interests of the corporations themselves and the interests of the state, as investors are interested in implementing more acceptable corporate governance practices. This is a reality that neither companies nor the state can ignore.

As OECD Secretary-General Donald Johnston noted, “The OECD principles have formed the basis of a broad program of cooperation between the OECD and non-OECD countries, they are the basis of the corporate governance section of the World Bank/IMF Reports on Compliance with Standards and Codes (ROSC)”.

On April 22, 2004, a revised version of the OECD Corporate Governance Principles was published, which took into account the changes in corporate governance practices that have taken place since 1999 and introduced some important amendments and additions.

The updated principles were presented at the international scientific-practical conference "Corporate Governance and Economic Growth in Russia" (June 2004, Moscow).

Based comparative analysis two versions of the principles of corporate governance, the following additions were made: the original version of the principles covered five main areas of corporate governance:

Shareholders' rights;

Equal treatment of shareholders;

The role of stakeholders;

Disclosure and transparency;

Responsibilities of the board.

In turn, the updated version of the principles includes a new section - "Creating the basis of an effective corporate governance system", the essence of which is that the corporate governance system should contribute to the development of transparent and efficient markets, not contradict the principle of legality and clearly define the division of responsibilities between various supervisory, regulatory and law enforcement agencies.

A number of additions have also been made to other sections. For example, in the area of ​​exercising the rights of shareholders and the basic functions of owners, the following was added: it is recommended that the corporation promote the real participation of shareholders in making key decisions related to the corporate governance of the company, in particular, when nominating and electing members of the board of directors. In addition, shareholders should be able to express their opinion on the remuneration policy for board members and key management members. Compensation of members of the board of directors and employees of the company, allowing participation in the share capital of the company, must also be approved by the shareholders. In addition to the foregoing, shareholders are encouraged to consult among themselves on matters relating to their fundamental rights, subject to exceptions to prevent abuse.

Another important aspect, which was reflected in the new version of the principles of corporate governance, is the equality of conditions for shareholders, which implies the protection of minority shareholders from abuse by or in the interests of holders of large blocks of shares.

In addition, the principles address the role of stakeholders in corporate governance: stakeholders, including employees of the company and their representative bodies, should be able to freely express their views to the board of directors regarding illegal or unethical actions.

Also new in the principles is the emphasis on the role of corporate governance in avoiding bankruptcy and the proper enforcement of creditors' rights through effective enforcement of the law.

In turn, in the field of transparency of the company, the following was added: information about the members of the board of directors (qualification, election process, independence) should be disclosed; the corporate governance system should be complemented by an effective approach that allows and facilitates the analytical and consulting work of analysts, brokers, rating agencies, which, in turn, will contribute to an objective and balanced decision-making by investors.

New in the principles is also the adjustment of the duties of members of the board of directors: the need for the relationship of remuneration of key managers and members of the board of directors from the long-term interests of the company and its shareholders, the objectivity of compliance with established requirements and a transparent process for nominating and electing members of the board of directors are formulated.

Basically, additions to the principles of corporate governance are aimed at protecting the rights of shareholders, including minority and foreign ones, and at increasing the transparency of the company's activities.

Corporate compliance with the basic principles of good corporate governance is becoming an increasingly important factor in investment decisions. Those companies seeking to take full advantage of the opportunities offered by global capital markets and raise long-term capital need to have corporate governance arrangements that are credible, understandable and consistent with international principles. Even if foreign sources of capital are not the main sources of capital for corporations, adhering to good corporate governance practices will help increase domestic investor confidence, lower the cost of raising capital, and ensure the smooth functioning of financial markets.

Taking into account foreign experience and international principles of corporate governance, the government of the Russian Federation developed and approved in November 2001. code of corporate conduct of the Russian Federation. The provisions of the code apply to business companies of all types (JSC, LLC, etc.), but to a greater extent they are important for joint-stock companies. This is due to the fact that it is in joint-stock companies, where there is often a separation of ownership from management, that conflicts occur between the shareholders of the company and its leaders.

The principles of corporate conduct provided for by the code are formulated on the basis of the principles of corporate governance of the OECD. The Code is a set of recommendations, the application of which by an enterprise should be voluntary, based on the desire to increase its attractiveness in the eyes of both existing and potential investors.

Most of the principles of corporate behavior have already been reflected in Russian legislation, but the practice of their implementation, including judicial practice, and the traditions of corporate behavior are still being formed. The provisions of the law are insufficient to ensure an appropriate level of corporate conduct, and the implementation of the necessary changes in the law is late. Legislation does not regulate and cannot regulate all issues arising in connection with the management of a joint-stock company. And here there are a number of objective reasons: corporate legislation establishes and should establish only general binding rules; many issues related to corporate relations lie outside the legislative sphere - in the sphere of morality, where the norms of behavior are ethical, not legal. It is for this reason that legal provisions alone are never sufficient to achieve good corporate conduct. In addition, the legislation is not able to respond in a timely manner to changes in the practice of corporate behavior.

In order to improve corporate governance, along with the improvement of legislation, it is also necessary to introduce the principles of the Code of Corporate Conduct in joint-stock companies.

The role of effective corporate governance in attracting investments was also noted at the International Conference "Corporate Governance and Economic Growth in Russia" (May 2004). The conference analyzed corporate governance trends in Russia, considered both the theoretical provisions for the implementation of corporate governance in Russia and the practical experience gained by companies over the years of applying international and Russian corporate behavior standards. The conference once again emphasized the importance of effective implementation of corporate governance for both operating companies that are ready to attract investments, and companies that plan to attract additional capital only in the future. In his speech at the conference, Prime Minister of Russia M. Fradkov noted that "without a radical improvement in the work of Russian companies, the introduction of international standards of corporate governance and mechanisms for developing the resolution of corporate conflicts, and improving the quality of management, it is impossible to solve the large-scale economic tasks facing Russia" .

Despite the successes achieved in the implementation of corporate governance in Russia, one cannot but admit that there are some problems in its application in individual companies. This is related to inefficiency. internal mechanisms control, as well as the insufficiency of external control over the activities of joint-stock companies. In this regard, in any corporation there is a conflict of interests: on the one hand, the owners, whose goal is to maximize return on invested capital, on the other hand, managers who pursue many local goals, including maximizing the profit of the corporation they manage is by no means in the first place. Therefore, one of the key tasks for the development and improvement of corporate governance in Russia is the formation of independent and responsible boards of directors, which are, in many respects, an effective method of controlling the activities of companies. As President of Russia V.V. Putin: “Russia sets itself a strategic goal – to become a country producing competitive goods and providing competitive services. All our efforts are aimed at achieving this goal. We understand that in order to integrate into the global capital markets, it is necessary to resolve issues related to protecting the rights of owners and improving the quality of corporate governance and financial transparency of business.”

The tasks of improving the quality of corporate governance should be addressed and considered on a global scale, given their importance for the global economy, said D. Johnston, Secretary General of the Organization for Economic Cooperation and Development (OECD). Everywhere in the world, these issues are in the spotlight, as they are central to the functioning of a market economy, ensuring economic growth and the stability of financial markets.

The President of the World Bank Group, James Wolfensohn, noted that “... Russia has already created a legislative framework in the field of corporate governance. Now Russia faces the task of improving it. Russia must identify and resolve issues on how to improve corporate governance legislation, while emphasizing that corporate governance issues are extremely important for investors and for attracting capital to the country's economy.

Describing the level of corporate governance, the President of the European Bank for Reconstruction and Development (EBRD), Jean Lemierre, noted that "it is necessary to create a mechanism for fulfilling the requirements of the Code of Corporate Conduct, which is still weak."

The solution to this problem involves improving the practice of boards of directors, turning boards into an effective corporate governance body capable of being responsible for decisions made, resisting the direct influence of individual major shareholders, and finding effective solutions in a conflict of interest. In this area, a number of issues need to be resolved:

Development of company information policy standards;

Increasing the volume of information disclosed;

Formation of professional standards;

Ethical standards for members of boards of directors;

Providing non-executive directors with the necessary amount of information about the company's activities.

Boards of directors should become initiators and conductors of new management principles. Large private owners and the state need to be more exacting in assessing the activities of the board of directors as a whole, as a single body, and to abandon direct voting instructions for members of the board of directors.

It should also be noted that the main function of the board of directors is to resolve contradictions caused by the separation of ownership and management functions by monitoring the activities of the executive bodies of corporations. Otherwise, the company may find itself in a state of bankruptcy or drawn into corporate conflicts, which further leads to a deterioration in the company's image and practically deprives it of the opportunity to attract investments, especially foreign ones, since for external investors, the decisive factor is not only the company's positive financial results to date. day, but also its reputation, which will contribute to its development in the future.

As a typical example, illustrating the possible consequences of such violations, we can cite the situation that has developed in OJSC Vorgashorskaya Mine. This example clearly demonstrates how the lack of effective corporate governance leads to the possibility of unhindered use of the property of shareholders, producers and the state contrary to their interests.

Another example proves the necessity of having independent directors on the board of directors of a company. This is the situation with Enron. The company used innovative trading technologies and accounting “rationalization”, demonstrated excellent financial performance, however, in reality, the money went to offshore structures to hide debts through fictitious transactions, there was a so-called “dumping” of assets, trading contracts. As a result, this led to a fall in the company's shares on the stock market, and later to the bankruptcy of the company. At the same time, the board of directors of the company was educated, successful in business people who are experts in the field of finance and accounting, the board of directors included several specially created committees, there was a corporate secretary and an external auditor who prepared regular reports. And, despite, it would seem, all the applied principles of effective corporate governance, the company, as a result, turned out to be bankrupt. What is the reason? As a more detailed analysis of the activities of the board of directors showed, it did not fulfill confidential duties, ignored the conflict of interest that arose, did not put into practice the independence of the auditor and audit commission. This could not have happened if there had been an independent director on the board, who would really contribute to the transparency of the company's activities. However, the company did not introduce independent directors into the board of directors, which ultimately led to the bankruptcy of a stable and promising company.

The above examples have illustrated the need for companies to have efficient boards of directors, as well as the need for independent directors on the board.

Undoubtedly, the board of directors occupies a key place in the company's management structure. He carries out the strategic development of the company, effective control over the activities of the company, the implementation and protection of the rights of shareholders, the resolution of corporate conflicts, promotes the effective operation of the executive bodies of the company, and the transparency of the company.

Efficient work of boards of directors is an important factor in increasing the investment attractiveness of companies and increasing their shareholder value. It is not surprising that the expectations of existing and potential investors are increasingly associated with the development and strengthening of the institution of independent directors in Russia.

Investor demands for transparency and openness in the activities of joint-stock companies around the world are constantly increasing. Russian enterprises are also striving to increase their competitiveness and attract capital. Independent directors play an important role in the work of the board of directors and make a significant contribution to the effective management of companies, they can perform the function of oversight and internal control, and, under favorable conditions within the company, more significant functions, including setting the company's strategy, as well as maintaining effective interaction with investors . In accordance with the corporate governance code, the following criteria for independent directors are distinguished: when determining specific requirements for an independent director, it is necessary to proceed from the fact that such a director must be able to make independent judgments. This implies the absence of any circumstances that could influence the formation of his opinion. In this regard, it is recommended to recognize members of the board of directors as independent directors:

· who have not been in the last 3 years and are not officials (manager) or employees of the company, as well as officials or employees of the managing organization of the company;

· who are not an officer of another company in which any of the company's officers is a member of the HR and remuneration committee of the board of directors;

· non-affiliated persons of the official (manager) of the company (official of the managing organization of the company);

· who are not affiliated persons of the company, as well as affiliated persons of such affiliated persons;

· those who are not parties to obligations with the company, in accordance with the terms of which they can acquire property (receive funds), the value of which is 10% or more of the total annual income of these persons, except for receiving remuneration for participation in the activities of the board of directors;

· not being a major counterparty of the company (such a counterparty, the total volume of the company's transactions with which during the year is 10% and a percent of the book value of the company's assets);

who are not representatives of the state.

An independent director, upon the expiration of a 7-year term for performing the duties of a member of the company's board of directors, cannot be considered independent.

At the same time, the company has the following requirements for an independent director: high professionalism, experience in senior positions, good business reputation, knowledge of the specifics of the business, successful work experience, rich life experience, compliance with the requirements of independence.

To meet these recommendations in practice and meet the demand from Russian business, we need real people - professionals with a good reputation, capable of competently performing the functions of an independent corporate director.

Of great interest to the professional community is a study on“Activity of an independent director”, conducted in 2002 by the association of independent directors (AND) at participation of the Investor Protection Association (IPA) and Ornstand Young Company.

The study was conducted on the basis of a methodology developed by experts andassociations of independent directors, associations for the protection of the rights of investors and companiesErnst & Young, in the form of a survey of heads of Russian enterprises, representativesbranches of trade, telecommunications, computer technologies, metallurgy, legal assisted by the state, the federal commission companies, as well as consultants in the field of corporate law.

Based on the results of the study, a conclusion was made about the degree of influence of independent directors on the company's activities. Three degrees of such influence were singled out: the first, when the board includes 1-2 independent directors. At this level, the transparency of the company and the interests of all groups of shareholders increase. The second degree - when a quarter or more than a quarter of the members of the board of directors are independent, influence on business decisions, corporate policy and strategy is already possible. The third degree of influence - the majority in the board of directors belongs to independents. This degree of influence also has a downside - the maximum responsibility of independent directors for the consequences of decisions made.

The process of development of the institution of independent directors actively contributes to the securities market and has developed and recommended for application a code of corporate conduct, where important attention is paid to the board of directors and independent corporate directors. According to the provisions of the Code of Corporate Conduct, an independent director is an important tool for building investor confidence in enterprises, ensuring the optimal functioning of the board of directors and increasing the value of the business. The Code spells out the requirements and criteria for the independence of an external director and gives recommendations on their number.

The role of an independent director is to strengthen shareholder confidence in the company; improving investor relations; making coordinated strategic decisions; creation of effective internal control mechanisms; conflict resolution; increasing the transparency of management; increasing the value of the company.

To put these recommendations into practice and meet the demand from Russian business, we need real people - professionals with a good reputation, capable of competently performing the functions of an independent corporate director (these are directors of the association of independent directors).

It should also be noted that in In 2003, the association, in order to support its representatives, managed to attract the votes of a number of Russian and foreign investors who had not previously cooperated with the IPA. For example, in 2003, the API for the first time began to coordinate its activities to support candidates to the boards of directors with the largest investment funds, which inUnder the new Securities Market Commission requirements, the US must vote with customer shares they hold. Thus the voices of foreign shareholders-owners of depositary receipts issued for shares of Russian issuers, for the first time this year, for the first time supported candidates nominated by the IPA. In previous years, the management of some companies often illegally used the votes of ADR holders in own interests.

Practice of nomination and election of independent directors in 2003 compared to 2000-2002. has changed. Currently in the nomination of an independentRepresentatives are interested not only in minority shareholders, but also in the companies themselves, their controlling and strategic shareholders. This is mainly due to the fact that companies really felt the return from the inclusion of independent members in the boards of directors, which manifested itself in an improvement in investment attractiveness and capitalization growth. An important factor was the tightening of requirements on the New York Stock Exchange, which made it a mandatory condition for listing to have an audit committee on the board of directors of the company, consisting exclusively of independent directors. On the other hand, the reductionrepresentation of portfolio investors is due to the aggressive buying up shares by strategic investors to consolidate blocking stakes.

The Russian practice of the work of independent directors is just beginning to take shape, many aspects and advantages of their activities are not fully understood by the public. Therefore, from the point of view of explaining the understanding of the role and functions of an independent director, the issue of “carriers” of modern knowledge and experience in this area is relevant. The development of an association of independent directors is an important part of the process of forming a professional community of directors.

1 November 2001 Investor Protection Association (IPA) and Ernst EndYash CIS jointly announced the launch of a joint independent directors program withwith the aim of developing the practice of independent directors in Russia and improving the culture of corporate governance. This local initiative is part of a widerprograms supported by Ernst Ond Young together with the Institute of Directors in the UK and with the Investor Protection Association in Russia.

Along with the adoption of a code of corporate conduct recommended by the Russian FCSM, the joint initiative of Ernst & Young and the Investor Protection Association is designed to serve the benefit of Russian business as a whole, complementing the existing IPA practice of nominating and electing investor representatives to the boards of directors of Russian companies.

On September 17, 2002, the Association of Independent Directors (IDA) announced the official opening of membership in the Association. Today, over 90 Russian and international directors and corporate governance experts are members of the Association.

The Association of Independent Directors (IDA) is currently the only organization of corporate directors in Russia that has undertaken the functions of forming and developing a professional community of independent corporate directors. AID mission is to assist Russian joint-stock companies in increasing the effectiveness of their activities by introducing the best world practice of professional independent directors.

The activities of the professional association will allow independent directors to exchange experience, as well as create a mechanism for effectively meeting the market demand for independent directors with company side.

The mechanisms of corporate governance in a market economy are aimed at ensuring the implementation of property rights and the formation of appropriate corporate control structures. These mechanisms are traditionally divided into external (i.e. impact external environment) and internal (internal procedural mechanisms for managing a joint-stock company).

External mechanisms include:

1) corporate legislation and its enforcement infrastructure (the main elements of such an infrastructure in our country can be distinguished: the system of arbitration managers, the FSFR, the system of arbitration courts);

2) financial market control;

3) the threat of bankruptcy due to the erroneous policy of managers;

4) application of bankruptcy procedures;

5) the corporate control market (the threat of a hostile takeover and change of managers).

These mechanisms are interconnected: control of the financial market includes bank control, generated by the debt market, and control of the securities market, which is carried out through the activities of financial intermediaries capable of carrying out close information monitoring of companies whose shares are traded on the market. The stock market can function as a market for corporate control if it does not so much finance large capital investments as it provides the resources for massive mergers and acquisitions. Hostile takeover (capture) is understood as an attempt to gain control over the financial economic activity or the assets of the target company with resistance from management or key members of the company. Hostile takeovers occur through share buybacks, proxy hunting for shareholder meetings, bankruptcy, and so on.

The key feature of Russia at the present time is the predominance of harsh hostile takeovers (essentially "captures") with the use of administrative resources. During the period of the first bankruptcy law (the law of the Russian Federation of November 19, 1992 “On the insolvency (bankruptcy) of enterprises”), the bankruptcy procedure was not widely used in Russia.

With the adoption on January 8, 1998, of the second bankruptcy law (the Federal Law “On Insolvency (Bankruptcy)”), aggressive takeovers began to be carried out primarily through bankruptcy and various debt schemes. The following problems arose in the area of ​​insolvency: 1) violation of the rights of the debtor and its founders; 2) non-payment of taxes; 3) withdrawal of the debtor's assets in the course of bankruptcy proceedings; 4) "non-transparency", weak regulation of bankruptcy procedures, allowing arbitration managers and other participants in the bankruptcy process to abuse their shortcomings; 5) the lack of effective mechanisms for the responsibility of unscrupulous and inefficient arbitration managers, etc. To solve the problems of seizing a business or a property complex, ousting shareholders, withdrawing assets, etc., set by the initiators of bankruptcy, it was this mechanism that turned out to be associated with lower costs compared to with other ways. In addition, bankruptcy procedures make it possible to secure control in joint-stock companies in which the invader is not a shareholder, and at the same time oust all large and small shareholders from them.

This led to the need to adopt on October 26, 2002 a new Federal Law “On Insolvency (Bankruptcy). Significant positive developments in strengthening the protection of the rights of minority shareholders under the law on joint-stock companies and the rights of small creditors under the insolvency law further stimulate the demand for bankruptcies as an effective tool for solving various corporate problems, from protecting managers from owners to hostile takeovers.

Processes of redistribution of property are observed in all countries. The difference in Russia is that here they are massive, and also that they are carried out by methods that in most countries are recognized as illegal, or at least uncivilized.

Examples of bankruptcies in the Komi Republic that have received publicity allow us to draw the following conclusions about the features of these bankruptcies of enterprises in the republic:

1) situations of legal nihilism are observed, quasi-legal methods are used;

2) the largest corporate conflicts are associated with the reorganization of companies and hostile external takeovers;

3) it is necessary to note violations of the rights of shareholders or founders during the reorganization of companies, the use of law enforcement agencies to resolve corporate conflicts;

4) the practice of using the state (state and local authorities authorities) as a tool in the struggle for control over the company;

5) the real owners, obviously, are generally absent in any registers of owners; financial management and the conclusion of various transactions with property are carried out by arbitration managers on the instructions of the real owners on a "trust" basis; the appointment of "one's own" arbitration (temporary, competitive or external) manager almost guarantees the solution of "one's own" problems.

6) the conflict flares up not between shareholders and hired managers and not between controlling and minority shareholders, but between nominal owners (shareholders, managers, labor collective) and real owners who seize the hands of arbitration managers.

7) lawsuits against real owners in case of damage to ordinary shareholders are impossible - the owners are hidden behind many structures.

Losses are also borne by creditors, suppliers, employees, the state as a whole. Since there are obviously state officials among the invaders, the result of applying bankruptcy procedures is understandable: not the withdrawal of the enterprise from the crisis, but the sale of the enterprise's assets for a pittance and the termination of its activities. In this situation, the organizational and legal form of the enterprise does not matter: OJSC, LLC, PC or State Unitary Enterprise. The picture of capture is essentially the same, although the forms of enterprises are different. It should be noted that such seizures in the Republic of Kazakhstan are provoked by the poor quality of management, the incapacity of internal and external control mechanisms, and the insolvency of enterprises.

Numerous empirical studies by foreign scientists show that the lower the level of economic development of the country and the more imperfect the existing institutional system, the higher the concentration of property in the hands of real owners. From a theoretical point of view, this phenomenon can be considered as a kind of substitute for the lacking or poorly functioning corporate governance and corporate control mechanisms in Russia, such as legal protection of the rights of minority shareholders, an effective judicial system, active activity of financial intermediaries capable of carrying out close information monitoring of companies, whose shares are traded on the market, etc.

Often such an organizational and legal form as an open joint-stock company (in the classical sense) exists only formally. Shareholders included in the controlling group act according to a single scenario developed by the real owners. According to research by the Russian Economic Barometer on Property and Corporate Governance for 1995-2001, outsiders were the leading group among non-financial outsiders. individuals. However, in this case we are hardly dealing with the classical form of individual joint-stock ownership. As a rule, these are not individual investors who invest their savings in shares using the services of professional intermediaries participating in the securities market, but proxies either managers or major shareholders who gain access to shares as a result of personal agreements with them, bypassing the organized market.

The role of bankruptcy in a market economy can be viewed from several angles: 1) the threat of bankruptcy gives rise to one of the most important tasks of corporate governance - the prevention of bankruptcy; 2) the application of bankruptcy procedures, first of all, should lead to the improvement of finances and an increase in the efficiency of corporations; 3) declaring a debtor bankrupt should provide a solution to the problem of withdrawing inefficient enterprises from the market, returning debts to creditors, thereby helping to reduce economic risks in the economy.

According to the bankruptcy laws that are in force at different stages of market reforms in our country, the bankruptcy of a joint-stock company is, first of all, the bankruptcy of a legal entity. Therefore, despite the volume of the latest (2002 with amendments and additions) bankruptcy law, it is quite difficult to see in it the specifics of the bankruptcy of a joint-stock company or corporation. For the purposes of the Federal Law on Insolvency (Bankruptcy), the following basic concepts are used:

insolvency (bankruptcy) - the inability of the debtor recognized by the arbitration court to fully satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments (hereinafter - bankruptcy);

a debtor is a citizen, including an individual entrepreneur, or a legal entity, who are unable to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments within the period established by this Federal Law;

monetary obligation - the obligation of the debtor to pay to the creditor a certain amount of money under a civil legal transaction and (or) otherwise provided for by the Civil Code Russian Federation basis;

obligatory payments - taxes, fees and other obligatory contributions to the budget of the corresponding level and state off-budget funds in the manner and on the terms determined by the legislation of the Russian Federation; the head of the debtor - the sole executive body of a legal entity or the head of a collegial executive body, as well as another person carrying out activities in accordance with federal law on behalf of a legal entity without a power of attorney;

creditors - persons having in relation to the debtor the right to claim for monetary obligations and other obligations, for the payment of mandatory payments, for the payment of severance benefits and for the remuneration of persons working under an employment contract;

bankruptcy creditors - creditors for monetary obligations, with the exception of authorized bodies, citizens to whom the debtor is liable for causing harm to life or health, moral damage, has obligations to pay remuneration under copyright agreements, as well as the founders (participants) of the debtor for obligations arising from from such participation;

authorized bodies - federal executive bodies authorized by the government of the Russian Federation to represent in a bankruptcy case and in bankruptcy proceedings claims for the payment of mandatory payments and claims of the Russian Federation for monetary obligations, as well as executive authorities of the constituent entities of the Russian Federation, local governments authorized to represent in in a bankruptcy case and in bankruptcy procedures, claims for monetary obligations, respectively, of the constituent entities of the Russian Federation and municipalities;

representative of the founders (participants) of the debtor - the chairman of the board of directors (supervisory board) or other similar collective management body of the debtor, or a person elected by the board of directors (supervisory board) or other similar collegial management body of the debtor, or a person elected by the founders (participants) of the debtor for representation of their legitimate interests during bankruptcy procedures;

representative of the owner of the debtor's property - unitary enterprise- a person authorized by the owner of the property of the debtor - a unitary enterprise to represent his legitimate interests during bankruptcy proceedings;

representative of the creditors' committee - a person authorized by the creditors' committee to participate in the arbitration proceedings in the debtor's bankruptcy case on behalf of the creditors' committee;

representative of the meeting of creditors - a person authorized by the meeting of creditors to participate in the arbitration proceedings in the bankruptcy case of the debtor on behalf of the meeting of creditors;

arbitration manager (temporary manager, administrative manager, external manager or bankruptcy trustee) - a citizen of the Russian Federation approved by the arbitration court for conducting bankruptcy procedures and exercising other powers established by this Federal Law and being a member of one of the self-regulatory organizations;

interim manager - an arbitration manager approved by the arbitration court to conduct supervision in accordance with this Federal Law;

administrative manager - an arbitration manager approved by the arbitration court for financial rehabilitation in accordance with this Federal Law;

external manager - an arbitration manager approved by an arbitration court to carry out external management and exercise other powers established by this Federal Law;

bankruptcy commissioner - an arbitration commissioner approved by an arbitration court for conducting bankruptcy proceedings and exercising other powers established by this Federal Law;

moratorium - suspension of the debtor's performance of monetary obligations and payment of mandatory payments;

representative of the debtor's employees - a person authorized by the debtor's employees to represent their legitimate interests during bankruptcy procedures;

self-regulatory organization of arbitration managers (hereinafter also - self-regulatory organization) - a non-profit organization based on membership, created by citizens of the Russian Federation, included in the unified state register of self-regulatory organizations of qualified receivers and the objectives of which are to regulate and ensure the activities of qualified receivers;

regulatory body - the federal executive body exercising control over the activities of self-regulatory organizations of arbitration managers.

Among these definitions, most of them refer to participants in bankruptcy proceedings; the law distinguishes them into persons participating in a bankruptcy case and persons participating in an arbitration process in a bankruptcy case.

The persons participating in the bankruptcy case are:

Debtor;

Arbitration manager;

bankruptcy creditors;

Authorized bodies;

Federal executive authorities, as well as executive authorities of the constituent entities of the Russian Federation and local governments at the location of the debtor in the cases provided for by this Federal Law;

The person who provided the security for financial recovery.

Persons participating in the bankruptcy proceedings:

Representative of the debtor's employees;

Representative of the owner of the debtor's property - a unitary enterprise;

Representative of the founders (participants) of the debtor;

Representative of the meeting of creditors or representative of the committee of creditors;

Other persons in the cases provided for by the Arbitration Procedure Code of the Russian Federation and this Federal Law.

Such a detailed definition and expansion of participants in bankruptcy should help to eliminate the practice when potentially attractive enterprises within the framework of stable cooperative ties were the objects of bankruptcy. The imperfection of the institution of bankruptcy made it possible to use it in contradiction with its very meaning - against solvent enterprises, violating the interests of the state as a creditor and owner.

Corporate control associated with the threat or application of bankruptcy procedures implies the possession of such an important financial concept that reveals the mechanism for the occurrence of bankruptcy of a joint-stock company, as the "cost of capital". The source of the capital of a joint-stock company is primarily the funds of shareholders (the company's own capital) and loans. Other forms of financial obligations of the enterprise (debts to suppliers, deferred debts, etc.), which arise automatically and do not bear interest, are not considered in this context in order to identify the specifics of a joint-stock company.

Shareholders and creditors expect remuneration in accordance with prevailing market conditions, interest rates and dividends on similar bonds, shares and other types of financial liabilities. Obviously, their calculations can be justified only if the profit is sufficient to make the expected payments.

The weighted average expected payments (as a percentage of debt and equity) are the "cost of capital". These expectations are provided by the actual profitability of the use of JSC assets. One of the first signs of bankruptcy is when a firm's profitability falls below its cost of capital.

In practice, this is expressed in the fact that the interest on the loan and the dividends paid by the company cease to meet the prevailing market conditions, investing in this company becomes a less attractive financial event. The price of the company's shares falls, the risk of a return of funds increases.

The firm is having difficulty with cash. They already arise in connection with the relative decline in the profitability of the enterprise and possible difficulties in paying expenses. But cash difficulties can escalate dramatically if creditors find it too dangerous to renew them even at higher interest rates, do not renew loan agreements for the next period, and the firm has to pay not only interest, but also the amount of the principal debt.

Then a liquidity crisis may arise and the firm will enter a state of "technical insolvency". This stage of decline can be considered as bankruptcy, and this is a reason to go to court. However, a deeper drop is possible.

A decrease in a firm's profitability means a decrease in its price. The value of a firm is the present-day cash flows to creditors and shareholders (the "cost of capital" is used as a discount factor). The price of the firm may fall below the amount of obligations to creditors. This means that the share capital disappears. This is complete bankruptcy, bankruptcy of shareholders. If the price of a firm falls below the liquidation value of its assets, then it is the latter that is considered as the price of the firm. The liquidation of the firm becomes more profitable than its operation, and if the liquidation value of the firm is lower than the price of obligations, then the shareholders lose all their capital.

Therefore, the measures to prevent the bankruptcy of organizations, provided for by the Bankruptcy Law of 2002, include the following points:

1) the head of the debtor is obliged to send to the founders (participants) of the debtor, i.e. shareholders information about the presence of signs of bankruptcy;

2) founders (participants), authorities on different levels are obliged to take timely measures to prevent the bankruptcy of enterprises;

3) in order to prevent the bankruptcy of organizations, the founders (participants) of the debtor, creditors and other persons, on the basis of an agreement with the debtor, take measures aimed at restoring the solvency of the debtor. As part of bankruptcy prevention measures, the debtor may be provided with financial assistance in an amount sufficient to pay off monetary obligations and mandatory payments and restore the debtor's solvency (pre-trial resolution);

4) the provision of financial assistance may be accompanied by the assumption by the debtor or other persons of obligations in favor of the persons who provided financial assistance.

Of course, bankruptcy should be avoided, but if it is inevitable, then it can be regarded as a kind of health-improving procedure, as sometimes the only way to save an enterprise from final decline, to change the old order. Bankruptcy acts as the last chance for creditors and shareholders to remove incompetent and corrupt management before it completely destroys and plunders the entire enterprise. In this sense, bankruptcy, to one degree or another, is part of the internal mechanism of corporate governance. Although the representatives of the Foundation "Center for the Development of the Stock Market" T. Medvedeva and A. Timofeev believe that "The institution of bankruptcy cannot be classified as a legal institution of corporate governance and is associated with it only by that as a result of bankruptcy, the subject composition of the joint-stock company or the ratio of the degree of influence of various entities in it may change.

Indeed, the Russian legislative acts on bankruptcy (1992, 1998, 2002) do not separate bankruptcy procedures for a joint-stock company. The Federal Insolvency (Bankruptcy) Act 2002 applies to all legal entities, with the exception of state-owned enterprises, institutions, political parties and religious organizations. Relations associated with the insolvency (bankruptcy) of citizens, including individual entrepreneurs, are also regulated by this Federal Law.

However, the very definition of bankruptcy procedures given in the law shows that only one of them (bankruptcy proceedings) directly declares the debtor bankrupt, the rest have the goal of preserving and improving the enterprise, and only if this goal is not achieved, there is a transition to bankruptcy proceedings. When considering a case on bankruptcy of a debtor - a legal entity, the following bankruptcy procedures are applied:

Observation;

Financial recovery;

External management;

competitive production;

world agreement.

Supervision - a bankruptcy procedure applied to a debtor in order to ensure the safety of the debtor's property, analyze the financial condition of the debtor, draw up a register of creditors' claims and hold the first meeting of creditors.

Financial recovery - a bankruptcy procedure applied to a debtor in order to restore its solvency and pay off debt in accordance with the debt repayment schedule.

External administration is a bankruptcy procedure applied to a debtor in order to restore its solvency.

Bankruptcy proceedings are a bankruptcy procedure applied to a debtor declared bankrupt in order to adequately satisfy the claims of creditors.

Settlement agreement - a bankruptcy procedure applied at any stage of the bankruptcy proceedings in order to terminate the bankruptcy proceedings by reaching an agreement between the debtor and creditors.

Both legally and in fact, bankruptcy procedures will take several years. If we agree with the opinion of the above scientists, we will have to admit that during this period corporate governance in joint-stock companies is not carried out. The position of the Supreme Arbitration Court of the Russian Federation, when in 2000 it decided on the legality of repaying the debts of an enterprise with its shares, was precisely based on the fact that during the bankruptcy procedure, the usual management bodies of a joint-stock company do not operate. However, for example, the meeting of creditors during the implementation of the bankruptcy procedure can be considered as a successor to the functions of traditional management bodies. Improving the bankruptcy law will not give the proper result if civilized external and internal mechanisms of corporate governance and control do not function.

Joint Stock Business: Textbook / Ed. V.A. Galanova. M.: Finance and statistics, 2003. - S. 149.

Gracheva Maria Senior Financial Expert, ECORYS Nederland, Davit Karapetyan - IFC Corporate Governance in Russia
Magazine "Management of the company" No. 1 2004

Strange as it may sound, the practice of corporate governance has been around for centuries. Recall, for example: Shakespeare describes the unrest of a merchant who is forced to entrust the care of his property - ships and goods - to other persons (in modern terms, to separate property from control over it). But a full-fledged theory of corporate governance began to take shape only in the 80s. the last century. True, at the same time, the slowness of comprehending the prevailing realities was more than compensated for by research and the intensification of regulation of relations in this area. Analyzing the features of the modern era and the two previous ones, scientists conclude that in the XIX century. entrepreneurship was the engine of economic development, in the 20th century - management, and in the 21st century. this function is moving to corporate governance (Fig. 1).

A Brief History of Corporate Governance 1553: The Muscovy Company, the first English joint-stock company (England), was established. 1600: The Governor and Company of Merchants of London Trading into the East Indies was created, which from 1612 became a permanent joint stock company with limited liability. In addition to the meeting of owners, a meeting of directors (consisting of 24 members) with 10 committees was formed in it. The owner of shares in the amount of not less than 2 thousand pounds could become a director. Art. (England). 1602: The Dutch East India Trading Company (Verenigde Oostindische Compagnie) is created - a joint-stock company in which the separation of ownership from control was first implemented - an assembly of gentlemen (i.e. directors) was created, consisting of 17 members who represented shareholders 6 regional chambers of the company in proportion to their shares in the capital (Netherlands). 1776: A. Smith warns in a book about weak control mechanisms over the activities of managers (Great Britain). 1844: Joint Stock Companies Act (Great Britain) passed. 1855: Limited Liability Act (Great Britain) passed. 1931: A. Burley and G. Means (USA) publish their seminal work. 1933-1934: The Securities Trading Act of 1933 becomes the first law regulating the functioning of the securities markets (in particular, the requirement to disclose registration data is introduced). The 1934 law delegated enforcement functions to the Securities and Exchange Commission (USA). 1968: The European Economic Community (EEC) adopts a corporate law directive for European companies. 1986: The Financial Services Act passed, which had a huge impact on the role of stock exchanges in the regulatory system (USA). 1987: Treadway Commission submits report on drafting fraud financial reporting, confirms the role and status of audit committees and develops the concept of internal control, or the COSO model (Committee of Sponsoring Organizations of the Treadway Commission), published in 1992 (USA). 1990-1991: The collapse of Polly Peck corporations (losses of £1.3bn) and BCCI, and the fraud of Maxwell Communications' pension fund (£480m) indicate the need for improved practice corporate governance to protect investors (UK). 1992: Cadbury committee publishes first Corporate Governance Code (UK). 1993: Companies listed on the London Stock Exchange are required to disclose compliance with the Cadbury Code on principle (UK). 1994: Publication of the King Report (South Africa). 1994 -1995: publication of reports: Rutteman - about internal control and financial reporting, Greenbury - on the remuneration of members of the boards of directors (Great Britain). 1995: publication of the Viénot report (France). 1996: Publication of Peters report (Netherlands). 1998: Publication of the Hampel Report on Fundamental Principles of Corporate Governance and the Consolidated Code based on the Cadbury, Greenbury and Hampel Reports (UK). 1999: Publication of the Turnbull Report on Internal Control, which replaced the Rutteman Report (UK); publication, which became the first international standard in the field of corporate governance. 2001: Publication of the Meiners Report on Institutional Investors (UK). 2002: publication of the German Corporate Governance Code - the Kromme Code (Germany); Russian Code corporate behavior (RF). the collapse of Enron and other corporate scandals lead to the passage of the Sarbanes-Oxley Act (USA). Publication of Bouton Report (France) and Winter Report on European Corporate Law Reform (EU). 2003: Papers published: Higgs on the role of executive directors, Smith - on audit committees. Introduction of a new version of the Consolidated Code of Corporate Governance (Great Britain). Source: IFC, 2003.

Corporate governance: what is it?
Now in developed countries the foundations of the system of relations between the main actors of the corporate (shareholders, managers, directors, creditors, employees, suppliers, buyers, government officials, residents of local communities, members of public organizations and movements) have already been clearly defined. Such a system is created to solve three main tasks of the corporation: ensuring its maximum efficiency, attracting investments, and fulfilling legal and social obligations.
Corporate management and corporate governance are not the same thing. The first term refers to the activities of professional specialists in the course of business transactions. In other words, management is focused on the mechanics of doing business. The second concept is much broader: it means the interaction of many individuals and organizations related to the most diverse aspects of the functioning of the company. Corporate governance is at a higher level of company management than management. The intersection of the functions of corporate governance and management takes place only when developing a company's development strategy.
In April 1999, in a special document approved by the Organization for Economic Cooperation and Development (which unites 29 countries with developed market economies), the following definition of corporate governance was formulated: 1. Five main principles of good corporate governance were also described in detail there:

1. The rights of shareholders (the corporate governance system should protect the rights of shareholders).
2. Equal treatment of shareholders (the corporate governance system should ensure equal treatment of all shareholders, including small and foreign shareholders).
3. The role of stakeholders in corporate governance (the corporate governance system should recognize the statutory rights of stakeholders and encourage active cooperation between the company and all stakeholders in order to increase social wealth, create new jobs and achieve financial stability corporate sector).
4. Information disclosure and transparency (the corporate governance system should provide timely disclosure of reliable information on all significant aspects of the functioning of the corporation, including information on the financial position, performance results, composition of owners and management structure).
5. Responsibilities of the board of directors (the board of directors provides strategic guidance to the business, effective control over the work of managers and is obliged to report to shareholders and the company as a whole).

Very briefly basic concepts corporate governance can be formulated as follows: fairness (principles 1 and 2), responsibility (principle 3), transparency (principle 4) and accountability (principle 5).
On fig. 2 shows the process of forming a corporate governance system in developed countries. It reflects the internal and external factors that determine the behavior of the company and the effectiveness of its functioning.
In developed countries, two main models of corporate governance are used. The Anglo-American operates, in addition to Great Britain and the USA, also in Australia, India, Ireland, New Zealand, Canada, and South Africa. The German model is typical for Germany itself, some other countries of continental Europe, as well as for Japan (sometimes the Japanese model is distinguished as an independent one).
The Anglo-American model operates where a dispersed share capital structure has formed, i.e. dominated by many small shareholders. This model implies the existence of a single corporate board of directors that performs both supervisory and executive functions. The proper implementation of both functions is ensured by the formation of this body from non-executive directors, including independent directors (), and executive directors (). The German model develops on the basis of a concentrated shareholding structure, in other words, when there are several large shareholders. In this case, the company management system is two-level and includes, firstly, the supervisory board (it includes representatives of shareholders and employees of the corporation; usually the interests of the personnel are represented by trade unions) and, secondly, the executive body (board), whose members are managers. A feature of such a system is a clear separation of the functions of supervision (given to the supervisory board) and execution (delegated to the board). In the Anglo-American model, the board is not created as an independent body, it is actually in the board of directors. Russian model corporate governance is in the process of formation, and it shows the features of both of the samples described above.

Effective corporate governance: the importance of implementing the system, the cost of its creation, the demand from companies
Companies with high corporate governance standards tend to have better access to capital than poorly managed corporations and outperform the latter in the long run. Securities markets, which are subject to strict requirements for the corporate governance system, help to reduce investment risks. Typically, such markets attract more investors who are willing to provide capital at a reasonable price, and are much more effective in bringing together wealth holders and entrepreneurs in need of external financial resources.
Efficiently managed companies contribute more significantly to the national economy and the development of society as a whole. They are more financially sustainable, creating more value for shareholders, workers, local communities and countries as a whole. This is in contrast to poorly managed companies such as Enron, whose failures cause job losses, loss of pension contributions, and can even undermine confidence in the stock markets. The stages of building an effective corporate governance system and its advantages are shown in fig. 3.

Facilitating access to the capital market
The practice of corporate governance is a factor that can determine the success or failure of companies when entering the capital market. Investors perceive well-managed companies as friendly, inspiring more confidence that they are able to provide shareholders with an acceptable level of return on investment. On fig. Figure 4 shows that the level of corporate governance plays a special role in countries with emerging markets, where there is no such a serious system of protecting the rights of shareholders as in countries with developed markets.
New share registration requirements adopted by many stock exchanges world, necessitate companies to comply with increasingly stringent corporate governance standards. There is a clear tendency among investors to include corporate governance practices in the list of key criteria used in the process of making investment decisions. The higher the level of corporate governance, the more likely it is that assets are used in the interests of shareholders, and not stolen by managers.

Reducing the cost of capital
Companies that adhere to proper corporate governance standards can achieve a reduction in the cost of external financial resources used by them in their activities and, consequently, a reduction in the cost of capital in general. This pattern is especially typical for countries such as Russia, where the legal system is in the process of formation, and judicial institutions do not always provide effective assistance to investors in case of violation of their rights2. Joint-stock companies that have managed to achieve even small improvements in corporate governance can receive very significant advantages in the eyes of investors compared to other JSCs operating in the same countries and industries (Fig. 5).
As you know, in Russia the cost of borrowed capital is quite high, and there is practically no attraction of external resources through the issuance of shares. This situation has developed for many reasons, primarily due to the strong structural deformation of the economy, which creates serious problems with the development of companies as reliable borrowers and objects for investing shareholders' funds. At the same time, the spread of corruption, insufficient development of legislation and weak judicial enforcement and, of course, flaws in corporate governance3 play a significant role. Therefore, an increase in the level of corporate governance can have a very quick and noticeable effect, ensuring a decrease in the cost of a company's capital and an increase in its capitalization.

Promoting Efficiency
Good corporate governance can help companies achieve high performance and efficiency. As a result of improved management quality, the accountability system is becoming clearer, the oversight of the performance of managers is improving, and the link between the reward system of managers and the company's performance is being strengthened. In addition, the decision-making process of the board of directors is being improved by obtaining reliable and timely information and increasing financial transparency. Effective corporate governance creates favorable conditions for succession planning and sustainable long-term development of the company. Conducted studies show that high-quality corporate governance streamlines all business processes occurring in the company, which contributes to the growth of turnover and profit while reducing the volume of required capital investments4.
Implementing a clear accountability system reduces the risk of managerial conflict with shareholder interests and minimizes the risk of company officials cheating and making transactions in their own interests. If the transparency of a joint-stock company increases, investors get an opportunity to penetrate the essence of business operations. Even if the information coming from a company that has increased its transparency turns out to be negative, shareholders benefit from a reduction in the risk of uncertainty. Thus, incentives are formed for the board of directors to conduct a systematic analysis and risk assessment.
Effective corporate governance, which ensures compliance with laws, standards, rules, rights and obligations, allows companies to avoid the costs associated with litigation, shareholder claims and other business disputes. In addition, the settlement of corporate conflicts between minority and controlling shareholders, between managers and shareholders, as well as between shareholders and stakeholders is improving. Finally, executive officials are able to avoid harsh penalties and imprisonment.

Reputation improvement
Companies that adhere to high ethical standards, respect the rights of shareholders and creditors, and ensure financial transparency and accountability, will develop a reputation as zealous guardians of the interests of investors. As a result, such companies will be able to become worthy and enjoy greater public confidence.

The cost of effective corporate governance
The organization of an effective corporate governance system entails certain costs, including the costs of attracting specialists, such as corporate secretaries and other professionals, necessary to ensure work in this area. Companies will have to pay remuneration to external legal advisers, auditors and consultants. The costs associated with disclosing additional information can be significant. In addition, managers and board members will have to devote a lot of time to solving emerging problems, especially at the initial stage. Therefore, in large joint-stock companies, the implementation of a proper corporate governance system usually occurs much faster than in small and medium-sized ones, since the former have the necessary financial, material, human, and information resources for this.
However, the benefits of such a system far outweigh the costs. This becomes apparent if, when calculating economic efficiency, we take into account the losses that may be faced by: employees of firms - due to job cuts and loss of pension contributions, investors - as a result of the loss of invested capital, local communities - in the event of a collapse of companies. IN emergency Systematic corporate governance problems can even undermine confidence in financial markets and threaten the stability of a market economy.

Demand from companies
Of course, a proper corporate governance system is needed primarily by open joint stock companies with a large number of shareholders that do business in industries with high growth rates and are interested in mobilizing external financial resources in the capital market. However, its usefulness is also undeniable for open joint stock companies with a small number of shareholders, closed joint stock companies and limited liability companies, as well as for companies operating in industries with medium and low growth rates. As already mentioned, the introduction of such a system allows companies to optimize internal business processes and prevent conflicts by properly organizing relations with owners, creditors, potential investors, suppliers, consumers, employees, representatives of government agencies and public organizations.
In addition, any company seeking to increase its market share sooner or later faces limited internal financial resources and the impossibility of a long-term increase in debt burden without increasing the share of equity in liabilities. Therefore, it is better to start implementing the principles of good corporate governance in advance: this will provide a future competitive advantage for the company and thus give it the opportunity to stay ahead of rivals. In other words, the soldier who does not dream of becoming a general is bad.
So, corporate governance is not a fashionable term, but quite a tangible reality. In countries with economies in transition, it is characterized by very significant features (as well as other attributes of the market), without understanding which it is impossible to effectively regulate the activities of companies. Consider the specifics of the Russian situation in the field of corporate governance.

Research results
In the fall of 2002, the Interactive Research Group, in collaboration with the Association of Independent Directors, conducted special study corporate governance practices in Russian companies. The study was commissioned by the International financial corporation(International Finance Corporation, a member of the World Bank Group), with the support of the Swiss State Secretariat for Economic Affairs (SECO) and the Senter Internationaal agency of the Dutch Ministry of Economy5.
The survey involved senior officials of 307 joint-stock companies representing a wide range of industries and operating in four regions of Russia: Yekaterinburg and Sverdlovsk region, Rostov-on-Don and the Rostov region, Samara and the Samara region, St. Petersburg. The uniqueness of the study lies in the fact that it focuses on the regions and is based on a solid and representative sample. The average characteristics of the respondent firms are as follows: the number of employees - 250, the number of shareholders - 255, the sales volume - $1.1 million. , general directors or their deputies.
The analysis made it possible to reveal the presence of certain general patterns. In general, companies that have achieved some success in terms of corporate governance practices include those that:

• more in terms of turnover and net profit;
• feel the need to attract investment;
• hold regular meetings of the board of directors and the board;
• provide training for members of the board of directors.

Based on the data obtained, several key conclusions were made, grouped into four large groups:

1. commitment of companies to the principles of good corporate governance;
2. activities of the board of directors and executive bodies;
3. shareholder rights;
4. disclosure and transparency.

1. Commitment to the principles of good corporate governance
To date, only a few companies have made real changes in corporate governance (CG), so it needs serious improvement. Only in 10% of companies the state of CG practice can be assessed as, at the same time, the share of companies with unsatisfactory CG practice is 27% of the sample.
Many companies are not aware of the existence of the Code of Corporate Conduct (hereinafter - the Code), which was developed under the auspices of the Federal Commission for the Securities Market (FCSM) and is the main Russian corporate governance standard. Although the Code is targeted at companies with more than 1,000 shareholders (more than the average number of shareholders in the sample), it is applicable to companies of any size. Only half of the respondents are aware of the existence of the Code, of which about one third (i.e. 17% of the entire sample) have implemented its recommendations or intended to do so in 2003.
Many companies plan to improve their CG practices and would like outside help to do so. More than 50% of the firms surveyed intend to use the services of CG consultants, and 38% of respondents intend to organize training programs for board members.

2. Activities of the board of directors and executive bodies
Board of Directors
Boards of Directors (Boards) go beyond the scope of their competence under Russian law. The boards of directors of some companies are either not aware of the limits of their powers, or deliberately ignore them. Thus, every fourth Board of Directors approves an independent auditor of the company, and in 18% of respondent firms, the boards of directors elect members of the Board of Directors and terminate their powers.
Only a few members of the SD are independent. In addition, the problem of protecting the rights of minority shareholders is a matter of concern. Only 28% of surveyed companies have independent board members. Only 14% of respondents have the number of independent directors in line with the recommendations of the Code.
There are practically no committees in the structure of boards of directors. They are organized only in 3.3% of the companies participating in the study. Audit committees have 2% of respondent firms. None of the firms has an independent director as chairman of the audit committee.
Almost all companies meet the legal requirements for a minimum number of directors. 59% of companies in the Board of Directors do not have women. The average number of SD members is 6.8, and only one of the SD members is a woman.
Board meetings are held quite regularly. On average, board meetings are organized 7.9 times a year, which is slightly less than the Code, which recommends such meetings to be held every 6 weeks (or about 8 times a year).
Only a few companies organize training for their board members, and very rarely do they turn to independent consultants on corporate governance issues. Only 5.6% of respondents provided training to board members during the previous year. More fewer companies(3.9%) used the services of CG consulting firms.
The remuneration of the members of the Board of Directors is at a low level and, quite likely, is incomparable with the responsibility assigned to them. 70% of companies do not pay the work of directors at all and do not compensate them for the expenses associated with their activities. The average size the remuneration of a member of the Board of Directors is $550 per year; in companies with less than 1,000 shareholders - $475, and in companies with more than 1,000 shareholders - $1,200 per year.
The corporate secretary in companies with this position, as a rule, combines his main job with the performance of other functions. 47% of respondents indicated that they have introduced the position of a corporate secretary, whose main responsibilities are organizing interaction with shareholders and helping to establish cooperation between the Board of Directors and other management bodies of the company. In 87% of such companies, the functions of a corporate secretary are combined with the performance of other duties.

Executive bodies (board and CEO)
Most companies do not have collegial executive bodies. The Code recommends the formation of a collegial executive body - the board, responsible for the day-to-day work of the company, but only one quarter of the respondent firms has such a body.
In some companies, collegial executive bodies go beyond the scope of competence provided for by Russian law. As in the case of the Board of Directors, collegial executive bodies either do not fully understand or deliberately ignore the limits of their powers. Thus, 30% of collegial executive bodies make decisions on conducting extraordinary audits, and 14% approve independent auditors. Further, 9% elect senior executives and board members and terminate their powers; 5% elect the chairman of the board and CEO and terminate their powers; 4% elect the chairman and members of the Board of Directors and terminate their powers. Finally, 2% of the collegial executive bodies approve an additional issue of the company's shares.
Board meetings are held less frequently than recommended by the Code. Meetings of the collegial executive body are held on average once a month. Only 3% of companies follow the Code's recommendations to hold meetings once a week. At the same time, the results of the study show that the more often board meetings are held, the higher the profitability of companies.

3. Rights of shareholders
All surveyed companies hold annual general meetings of shareholders in accordance with the requirements of the law.
All respondent firms comply with legal requirements regarding the information channels used to notify shareholders of a general meeting.
The majority of survey participants inform shareholders that the meeting is properly conducted. At the same time, 3% of companies include additional issues on the agenda of the meeting without proper notification of shareholders.
In a number of companies, the Board of Directors or collegial executive bodies have appropriated certain powers of the general meeting. In 19% of firms, the general meeting is not given the opportunity to approve the board's recommendation to appoint an independent auditor.
Although the majority of respondents notify shareholders of the results of the general meeting, many companies do not provide shareholders with any information on this issue. Shareholders of 29% of surveyed companies are not informed about the results of the general meeting.
Many firms do not meet their obligations to pay dividends on preferred shares. Almost 55% of the surveyed companies with preferred shares did not pay declared dividends in 2001 (the number of such companies turned out to be 7% more than in 2000).
It is not uncommon for declared dividends to be paid late or not at all. The results of the study show that in 2001, 35% of companies paid dividends after 60 days had elapsed from the date the payment was announced. The Code recommends that payment be made no later than 60 days after the announcement. At the time of the study, 9% of companies had not paid dividends declared based on the results of 2000.

4. Disclosure and transparency
94% of companies do not have internal disclosure policy documents.
The ownership structure is still a well-kept secret. 92% of companies do not disclose information about major shareholders. Almost half of these firms have shareholders owning more than 20% of the authorized capital, and 46% have shareholders owning more than 5% of the outstanding shares.
Almost all responding firms provide shareholders with their financial statements (only 3% of companies do not).
In most companies, audit practices leave much to be desired, and in some firms, auditing is carried out in a very sloppy manner. 3% of respondent firms do not conduct an external audit of financial statements. Internal audit absent in 19% of companies with audit commissions. 5% of the study participants do not have an audit commission provided for by law.

The way in which many respondent firms approve the external auditor raises serious concerns about the independence of the latter. According to Russian legislation the approval of the external auditor is the exclusive prerogative of the shareholders. In practice, auditors are asserted: in 27% of companies - boards of directors, in 5% of companies - executive bodies, in 3% of companies - other bodies and persons.
Board audit committees are organized very rarely. None of the companies in the sample has an audit committee composed entirely of independent directors.
International financial reporting standards (IFRS) are beginning to spread, and this is especially true for companies that need to attract financial resources. 18% of surveyed firms currently prepare IFRS financial statements, and 43% of respondents intend to implement IFRS in the near future.
Based on the results of the survey, the respondent companies were assessed in accordance with 18 indicators characterizing the practice of corporate governance and distributed into the four groups indicated above (Fig. 6).
Overall, performance across all four categories can be significantly improved, with the following indicators requiring particular attention:

• training of members of the Board of Directors;
• increase in the number of independent directors;
• formation of key committees of the Board of Directors and approval of an independent director as the chairman of the audit committee;
• accounting in accordance with international financial reporting standards;
• improved disclosure of information about related party transactions.

Based on 18 indicators, a simple corporate governance index was built (Fig. 7). It allows for a quick assessment general condition CG in the respondent companies and serves as a starting point for further improvement of CG. The index is built as follows. The company receives one point if any of the 18 indicators is positive. All indicators have the same meaning for determining the situation in the field of corporate governance, i.e. they are not assigned different weights. The maximum number of points is therefore 18.
It turned out that the CG indices in the companies participating in the study differ significantly. The best AO received 16 out of 18 points, the worst - only one.
At least ten positive indicators have 11% of the companies in the sample, i.e. only every tenth joint-stock company has CG practices that can be generally considered to be in line with the relevant standards. The remaining 89% of respondents fulfill less than 10 out of 18 indicators. This indicates the need for serious work to improve the practice of corporate governance in the vast majority of joint-stock companies represented in the sample.
Thus, Russian companies have a lot of work to do to improve the level of corporate governance. Those who manage to achieve success in this area will be able to increase their efficiency and investment attractiveness, reduce the cost of attracting financial resources, and as a result, gain a serious competitive advantage.

The concept of corporate governance

Currently, there are many approaches to determining the essence of corporate governance (CG). Most often, it is customary to identify it with a special form of relationships that arise between managers and owners (shareholders) of corporate organizations, which includes a set of norms, rules, traditions and measures that allow the latter to exercise control over the activities of the company's management and fairly distribute its results.

Definition 1

A corporation is a special form of business organization that involves the concentration of ownership in the hands of shareholders. Most often, corporations take the form of joint-stock companies (public and non-public).

Corporate governance is directly related to the organization of managing the relationship between the corporation and its stakeholders.

Stakeholders should be understood as persons interested in the activities of the corporation. As a rule, they are:

• shareholders (owners);
• management (managers);
• employees (personnel);
• clients (consumers);
• suppliers;
• state;
• local community.

The corporate governance system involves building effective relationships between them.

In itself, corporate governance is usually considered in three basic aspects (Figure 1).

Figure 1. Main approaches to defining the essence of corporate governance. Author24 - online exchange of student papers

In the first case, it is customary to identify corporate governance as an independent system of knowledge, that is, to consider it as a science.

In the second case, the essence of corporate governance will be determined from the position systems approach. Then it is fair to speak of it as a set of managerial relations.

In the third case, the definition of the essence of corporate governance is based on process approach. It is a kind of managerial influence through which the corporation represents and serves the multidirectional interests of stakeholders, while ensuring a balance between the goals of the economic and social order.

In relation to the actual practice of functioning economic systems corporate governance involves building a system of its organization.

Essence and composition of the corporate governance system

The corporate governance system is the organizational model by which a corporation provides for the representation and protection of the interests of its investors and shareholders. It can also be defined as a set of principles and mechanisms for making corporate decisions and monitoring their implementation.

The CG system is based on a number of principles and rules that define the relationship between owners, hired managers and other groups of stakeholders.

It is believed that the corporate governance system should be based on universal human values, such as:

• honesty;
• transparency and openness;
• responsibility;
• dialogue with stakeholders;
• cooperation with society, etc.

Remark 1

The corporate governance system is based on the interaction and mutual reporting of stakeholders. Its main goal is to increase the corporation's profits and ensure the sustainability of its development, subject to compliance with current legislation, taking into account international standards.

IN general view the model of the corporate governance system is shown in Figure 2.

Figure 2. Scheme of the corporate governance system. Author24 - online exchange of student papers

Figure 2 shows that the CG system is inextricably linked with the distribution of information flows and coordinating interaction between shareholders, management and the board of directors. One way or another, it is aimed at regulating the relationship between managers and owners and is designed not only to minimize agency costs, but also to ensure the consistency of the goals of all stakeholder groups in order to ensure the effective functioning of the corporation.

Ultimately, the CG system is designed to encourage participants in corporate relations to develop such company development strategies, the implementation of which can lead to an increase in business value.

Features of building corporate management systems

Building an effective CG system is a complex multi-stage process. Its main steps are:

• development of uniform principles for the work of a corporation, which may be reflected in the form of a mission, philosophy or other fundamental document;
• determining the fundamental goals of the company, as well as isolating ways to motivate its owners;
• choice organizational structure, which would be adequate to the set goals.

Building a corporate governance system is associated with a number of problems, the totality of which can be divided into two groups. The first comes down to the definition of what exactly the corporation should build, and the second to the quality of its construction.

The primary role is given to the formation of the basic parameters of the elements of the system, which should be directly related to the four blocks of corporate governance, affecting the rights of shareholders, management bodies, social responsibility of business and disclosure of information. All of them should be built in such a way as to ensure the sustainability of the development of the corporation, while minimizing the conflict of interests of the main groups of stakeholders and maximizing the satisfaction of their interests, as well as individual corporate goals, while maintaining the congruence of goals.

Most often, building a corporate governance system takes the following form (Figure 3). This nose approach is simplistic.

Figure 3. Corporate governance bodies. Author24 - online exchange of student papers

As part of a broader approach to building a corporate governance system, it also includes such elements as CG participants (at the micro and macro levels), objects and mechanisms of its impact, as well as information support for its functioning.

The lack of a unified understanding of the corporate governance model in the world emphasizes the fact that a deep reform is underway in this area right now. The growing role of the private sector, globalization and changing conditions of competition make the problem of corporate governance the most relevant in today's business world. The practice of corporate governance directly affects the inflow of foreign investments into the economies of countries, without the formation of an effective corporate governance system it is impossible to ensure the inflow of investments. That is why the problem of corporate governance for countries with economies in transition is extremely important.

aim training course is to study the basics of corporate governance, the system for protecting the rights and interests of shareholders and investors in order to increase efficient operation and increase the investment attractiveness of the company.

The objectives of the course are to master the system for ensuring the effective operation of the company, taking into account the protection of the interests of its shareholders, including the mechanism for regulating internal and external risks; consider forms of corporate control, one of the internal mechanisms of which is the board of directors; determine the role of independent directors in the management of a joint-stock company, the signs and factors of the formation of corporate governance in Russia.

In the introductory topic "Corporate Governance: Essence, Elements, Key Issues" Let's consider the essence of corporate governance, define the elements and highlight its key problems.

Corporate governance (in the narrow sense) is the process by which a corporation represents and serves the interests of investors.

Corporate governance (in a broad sense) is a process in accordance with which a balance is established between economic and social goals, between individual and public interests.

In a joint-stock company, such management should be based on the priorities of the interests of shareholders, take into account the implementation of property rights and generate a corporate culture with a set of common traditions, attitudes and principles of behavior.

under corporate governance in joint-stock companies is understood the system of relations between the management bodies and officials of the issuer, owners of securities (shareholders, owners of bonds and other securities), as well as other interested parties, one way or another involved in the management of the issuer as a legal entity.

Summarizing these definitions, we can say that the corporate governance system is an organizational model by which a joint-stock company must represent and protect the interests of its shareholders.

Thus, the area of ​​corporate governance includes all issues related to ensuring the efficiency of the company, building intra- and inter-firm relations of the company in accordance with the adopted goals, protecting the interests of its owners, including the regulation of internal and external risks.

There are the following elements of corporate governance:

The ethical foundations of the company's activities, which consist in observing the interests of shareholders;

Achieving the long-term strategic goals of its owners - for example, high profitability in the long term, higher profitability than market leaders, or profitability above the industry average;

Compliance with all legal and regulatory requirements for the company.

Other than a company's compliance with legal and regulatory requirements, it is the market that controls corporate governance to a greater extent than the authorities. If the rules of good corporate governance are not followed, the company is threatened not with fines, but with damage to its reputation in the capital market. This damage will lead to a decrease in investor interest and a fall in stock prices. In addition, it will limit the opportunities for further operations and investments in the company by outside investors, as well as harm the company's prospects for issuing new securities. Therefore, in order to maintain investment attractiveness, Western companies attach great importance to compliance with the rules and regulations of corporate governance.

Among the key issues of corporate governance, we highlight the following:

Agency problem - mismatch of interests, misuse of authority;

Shareholders' rights - violation of the rights of minority (small) shareholders, concentrated control and the dilemma of insider control;

Balance of power - the structure and principles of the board of directors, transparency, composition of committees, independent directors;

Investment community - institutions and self-organization;

Professionalism of directors - a strategically oriented system of corporate governance, quality of decisions and professional knowledge of directors.

Topic "Theories and models of corporate governance" pay your attention to the fundamental principle of corporate governance - the principle of separation of ownership and control. The shareholders are the owners of the capital of the corporation, but the right to control and manage this capital essentially belongs to the management. At the same time, the management is a hired agent and is accountable to the shareholders. Unlike owners, management, having the necessary professional skills, knowledge and qualities, is able to make and implement decisions aimed at the best use of capital. As a result of the delegation of corporate management functions, a problem arises, known in the economic literature as the agency problem (A. Berle, G. Mine), i.e. when the interests of the owners of capital and the managers they hire to manage this capital do not coincide.

According to the contract theory of the firm (R. Coase, 1937), in order to solve the agency problem between shareholders as suppliers of capital and managers as managers of this capital, a contract must be concluded that most fully stipulates all the rights and conditions of the relationship between the parties. The difficulty lies in the fact that it is impossible to foresee in advance in the contract all the situations that may arise in the process of doing business. Therefore, there will always be situations in which management will make decisions on its own. Therefore, the contracting parties act in accordance with the principle of residual control, i.e. when management has the right to make decisions at its own discretion in certain conditions. And if the shareholders actually agree with it, then they may incur additional costs due to a mismatch of interests. These issues were considered very carefully by Michael Jensen and William Macling, who formulated the theory of agency costs in the 70s, according to which the corporate governance model should be built in such a way as to minimize agency costs. At the same time, agency costs are the amount of losses for investors that is associated with the division of ownership and control.

Thus, it can be said that the main economic reason for the emergence of the problem of corporate governance, as such, is the separation of ownership from the direct management of property. As a result of such a separation, the role of hired managers who directly manage the issuer's activities inevitably increases, as a result of which various groups of participants in relations that develop in connection with such management arise, each of which pursues its own interests.

After revealing numerous cases of discrepancy between the priorities of corporate managers and the interests of owners in Western countries, a discussion began. Many corporations prioritized growth over profitability. This was in the hands of ambitious managers and served their interests, but it was detrimental to the long-term interests of shareholders. When it comes to large corporations, the 80s. 20th century often referred to as the decade of managers. However, in the 90s. the situation has changed, and at the center of the debate are several theories of corporate governance that have been dominant in recent times:

- accomplice theories, the essence of which is the mandatory control of the company's management by all interested parties that implement the accepted model of corporate relations. It is also considered in the broadest interpretation of corporate governance as taking into account and protecting the interests of both financial and non-financial investors contributing to the activities of the corporation. At the same time, non-financial investors may include employees (specific skills for the corporation), suppliers (specific equipment), local authorities (infrastructure and taxes in the interests of the corporation);

- agency theory, which considers the mechanism of corporate relations through the toolkit of agency costs; comparative institutional analysis based on the identification of universal provisions of corporate governance systems when conducting cross-country comparison.

Many corporations (managed under the concept of shareholder value) focus on activities that can add value to the corporation (shareholder equity) and scale back operations or sell units that cannot add value to the company.

So, corporations concentrate on the key areas of their activities, in which they have accumulated the most experience. It can be added that good corporate governance as applied to Russian enterprises It also implies equal treatment of all shareholders, excluding any of them from receiving benefits from the company that do not apply to all shareholders.

Consider the main models of corporate governance, define the main basic principles and elements, let's give brief description models.

In the field of corporate law, there are three main models of corporate governance that are typical for countries with developed market relations: Anglo-American, Japanese and German. Each of these models was formed over a historically long period and primarily reflects the specific national conditions of socio-economic development, traditions, and ideology.

Consider the Anglo-American model of corporate governance, typical for the US, UK, Australia.

The basic principles of the Anglo-American system are as follows.

1. Separation of the property and obligations of the corporation and the property and obligations of the owners of the corporation. This principle reduces the risk of doing business and creates more flexible conditions for attracting additional capital.

2. Separation of ownership and control over the corporation.

3. The behavior of the company, focused on maximizing the wealth of shareholders, is a sufficient condition for increasing the welfare of society. This principle establishes a correspondence between the individual goals of the providers of capital and the social goals of the economic development of society.

4. Maximizing the market value of the company's shares is a sufficient condition for maximizing the wealth of shareholders. This principle is based on the fact that the securities market is a natural mechanism that allows one to objectively establish the real value of a company and, therefore, measure the welfare of shareholders.

5. All shareholders have equal rights. The size of the share held by various shareholders can influence decision making. Generally speaking, it can be assumed that those who have a large stake in a corporation have more power and influence. At the same time, having great power, one can act to the detriment of the interests of small shareholders. A contradiction naturally arises between the equality of shareholders' rights and the much greater risk of those who invest large amounts of capital. In this sense, the rights of shareholders must be protected by law. Such shareholder rights include, for example, the right to vote in solving key issues such as mergers, liquidation, etc.

The main mechanisms for implementing these principles in the Anglo-American model are the board of directors, the securities market and the corporate control market.

The German corporate governance model is typical of the countries of Central Europe. It is based on the principle of social interaction - all parties (shareholders, management, workforce, key suppliers and consumers of products, banks and various public organizations) interested in the activities of the corporation have the right to participate in the decision-making process.

Metaphorically speaking, they are all on the same ship and are ready to cooperate and interact with each other, paving the course of this ship in a sea of ​​market competition.

It is characterized by the following main elements:

Two-tier structure of the board of directors;

Stakeholder representation;

Universal banks;

Cross ownership of shares.

Unlike the Anglo-American model, the board of directors consists of two bodies - the management board and the supervisory board. The functions of the supervisory board include smoothing the positions of groups of participants in the enterprise (the supervisory board gives an opinion to the board of directors), while the board of governors (executive board) develops and implements a strategy aimed at harmonizing the interests of all participants in the company. The division of functions allows the board of governors to focus on the affairs of the enterprise.

Thus, in the German model of corporate governance, the main management body is collective. For comparison: in the Anglo-American model, the board of directors elects the general director, who independently forms the entire top-level management team and has the ability to change its composition. In the German model, all management team elected by the supervisory board.

The Supervisory Board is formed in such a way as to reflect all the key business ties of the corporation. Therefore, bankers, representatives of suppliers or consumers of products are often present on supervisory boards. The same principles are adhered to by the labor collective when electing members of the Supervisory Board. This is not about the fact that half of the supervisory board - the workers and employees of the corporation. Labor collective elects such members of the supervisory board who can provide the greatest benefit to the corporation from the point of view of the workforce.

At the same time, German trade unions do not have the right to interfere in the internal affairs of corporations. They solve their problems not at the level of companies, but at the level of administrative territories - lands. If the unions seek to raise the minimum wage, then all enterprises in the Länder must comply with this condition.

It should be noted that the German commercial banks are universal and simultaneously provide a wide range of services (crediting, brokerage and consulting services), i.e. at the same time they can play the role of an investment bank, carrying out all the work related to the issue of shares.

The Japanese corporate governance model is characterized by social cohesion and interdependence rooted in Japanese culture and traditions. The modern model of corporate governance was formed, on the one hand, under the influence of these traditions, on the other hand, under the influence of external forces in the post-war period.

The Japanese corporate governance model is characterized by the following:

System of major banks;

network organization external interactions companies;

Lifetime recruitment system.

The Bank plays an important role and performs a variety of functions (creditor, financial and investment analyst, financial advisor, etc.), so each company seeks to establish close relationships with it.

Each horizontal company has one main bank, vertical groups can have two.

At the same time, various informal associations- unions, clubs, professional associations. For example, for FIGs, this is the Presidential Council of the group, whose members are elected from among the presidents of the main companies of the group with the formal goal of maintaining friendly relations between the heads of the companies. In an informal setting, there is an exchange of important information and a soft agreement on key decisions regarding the activities of the group. Key decisions are developed and agreed upon by this body.

TO network organization external interactions of companies include:

Presence of network elements - councils, associations, clubs;

Practice of intragroup movement of management;

Electoral intervention;

Intra-group trading.

The practice of intra-group movement of management is also widespread. For example, an assembly plant manager may be seconded for a long period to a component supplier to solve a problem together.

The practice of electoral interference in management process often carried out by the main bank of the company, adjusting its financial position. Joint measures of several companies are practiced to bring out of the crisis state of any enterprise of the group. Bankruptcy of companies belonging to financial and industrial groups is a very rare phenomenon.

I would like to note the role of intra-group trading as a very important element of network interaction within the group, where the main role of trading companies is to coordinate the activities of the group to all aspects of trade. Since the groups are widely diversified conglomerates, many materials and components are bought and sold within the group. Trade transactions external to the group are also carried out through the central trading company. Therefore, the turnover of such companies, as a rule, is very large. At the same time, transaction costs are also very low. Therefore, the trade markup is small.

The model's lifelong employment system can be described as follows: "Once you appear in a working family, you remain a member forever."

Topic "Principles of Corporate Governance" the basic principles* developed by the Organization for Economic Cooperation and Development (OECD) are formulated. The nature and characteristics of the corporate governance system are generally determined by a number of general economic factors, macroeconomic policy, and the level of competition in the markets for goods and factors of production. The structure of corporate governance also depends on the legal and economic institutional environment, business ethics, awareness of environmental and public interests by the corporation.

There is no single corporate governance model. At the same time, work carried out at the Organization for Economic Co-operation and Development (OECD) has revealed some common elements underlying corporate governance. The OECD Guidance Document "Principles of Corporate Governance" defines the fundamental positions of the mission of corporations based on these common elements. They are formulated to cover various existing models. These "Principles" focus on the management problems that have arisen as a result of the separation of ownership from management. Some other aspects related to the company's decision-making processes, such as environmental and ethical issues, are also taken into account, but in a more detailed form they are disclosed in other OECD documents (including the Guidelines for Transnational Enterprises, the Convention and the Anti-Bribery Recommendation), as well as documents from other international organizations.

The extent to which corporations adhere to the basic principles of good corporate governance is becoming an increasingly important factor in investment decisions. Of particular importance is the relationship between corporate governance practices and the ability of companies to source funding from a much wider range of investors. If countries are to take full advantage of the global capital market and raise long-term capital, corporate governance practices must be convincing and understandable. Even if corporations do not rely primarily on foreign sources of funding, adherence to good corporate governance practices can increase domestic investor confidence, lower the cost of capital, and ultimately encourage more stable sources of funding.

It should be noted that corporate governance is also affected by the relationship between the participants in the governance system. Controlling shareholders, which may be individuals, families, alliances or other corporations acting through a holding company or through mutual ownership of shares, can significantly influence corporate behavior. As equity holders, institutional investors are increasingly demanding voting rights in corporate governance in some markets. Individual shareholders are generally reluctant to exercise their management rights and cannot help but worry about whether they are treated fairly by majority shareholders and management. Lenders play an important role in some systems of government and have the potential to exercise external control over the activities of corporations. Employees and other stakeholders make an important contribution to the long-term success and performance of corporations, while governments create the overall institutional and legal structures for corporate governance. The role of each of these actors and their interactions vary widely across countries. In part, these relations are regulated by laws and by-laws. regulations, and partly - voluntary adaptation to changing conditions and market mechanisms.

According to the principles of corporate governance of the OECD, the corporate governance structure should protect the rights of shareholders. The main ones include: reliable methods of registration of property rights; alienation or transfer of shares; receiving necessary information about the corporation in a timely and regular manner; participation and voting at general meetings of shareholders; participation in board elections; share in corporate profits.

So, the structure of corporate governance should ensure equal treatment of shareholders, including small and foreign shareholders, for all should be provided with effective protection in case of violation of their rights.

The corporate governance framework should recognize the statutory rights of stakeholders and encourage active cooperation between corporations and stakeholders to create wealth and jobs and ensure the sustainability of the financial health of enterprises.

The financial crises of recent years confirm that the principles of transparency and accountability are the most important in the system of effective corporate management. The corporate governance structure should provide timely and accurate disclosure of information on all material matters relating to the corporation, including the financial position, performance, ownership and management of the company.

In most OECD countries, about enterprises whose shares are freely floated and about those that are not listed on the stock exchange large enterprises extensive information is collected, both mandatory and voluntary, and subsequently distributed to a wide range of users. Public disclosure is usually required at least once a year, although in some countries such information is required to be provided semi-annually, quarterly, or even more frequently in case of significant changes in the company. Not content with minimum disclosure requirements, companies often voluntarily provide information about themselves in response to market demands.

Thus, it becomes clear that a strict disclosure regime is the main pillar of market monitoring of companies and is of key importance for shareholders to exercise their right to vote. The experience of countries with large and active stock markets shows that disclosure can also be a powerful tool to influence company behavior and protect investors. A strict disclosure regime can help raise capital and maintain confidence in the stock markets. Shareholders and potential investors need access to regular, reliable and comparable information that is detailed enough to enable them to assess the quality of administration's management and to make informed decisions about the valuation, ownership and voting of shares. Insufficient or unclear information can impair the functioning of the market, increase the cost of capital and lead to an abnormal allocation of resources.

Disclosure also helps to improve public understanding of the structure and operation of enterprises, corporate policies and performance in relation to environmental and ethical standards, and the relationship of companies with the communities in which they operate.

Disclosure requirements should not place undue administrative burdens or unjustified costs on businesses. Nor is it necessary for companies to disclose information about themselves that could jeopardize their competitive position, unless disclosure of such information is required to make a well-informed investment decision and in order not to mislead the investor. In order to determine the minimum information that must be disclosed, many countries apply the "concept of materiality". Material information is defined as information whose omission or misrepresentation could influence the economic decisions taken by users of the information.

Audited financial statements showing the financial performance and financial position of a company (generally these include a balance sheet, income statement, income statement, Money and notes to the financial statements) are the most common source of company information. The two main purposes of financial statements in their current form are to provide proper controls and a basis for valuing securities. The minutes of the discussions are most useful when they are read in conjunction with the accompanying financial statements. Investors are particularly interested in information that can shed light on the prospects for a business.

In addition to information about their business objectives, companies are encouraged to also provide information about their business ethics policies, environment and other public policy commitments. Such information can be useful to investors and other users of information in order to best assess the relationship between companies and the communities in which they operate, as well as the steps that companies have taken to achieve their goals.

One of the fundamental rights of investors is the right to receive information about the ownership structure in relation to the enterprise and the relationship of their rights with the rights of other owners. Often different countries require the disclosure of ownership data after reaching a certain level of ownership. Such data may include information about significant shareholders and other persons who control or may control the company, including information about special voting rights, agreements between shareholders for the ownership of controlling or large blocks of shares, significant cross-shareholdings and mutual guarantees. Companies are also expected to report related party transactions.

Investors require information about individual board members and principal officers so that they can evaluate their experience and qualifications, as well as the potential for conflicts of interest that could affect their judgment.

It should be noted that shareholders are also not indifferent to how the work of members of the board and chief executives is remunerated. Companies are generally expected to provide sufficient information on remuneration paid to board members and chief executive officers. officials(individually or collectively) to enable investors to properly evaluate the costs and benefits of remuneration policies and the impact of vested interest schemes, such as stock options, on performance.

Users financial information and market participants need information about significant risks that are reasonably predictable. Such risks may include risks associated with a particular industry or geographic area; dependence on certain types of raw materials; risks in the financial market, including risks associated with interest rates or exchange rates; risks associated with derivative financial instruments and off-balance sheet transactions, as well as risks associated with environmental liability.

Disclosure of information about risks is most effective if it takes into account the characteristics of the sector of the economy about which in question. It is also useful to report whether companies use risk monitoring systems.

Companies are encouraged to provide information on key issues related to employees and other stakeholders that can have a significant impact on the company's results of operations.

Topic "Corporate Control: Foundations, Motivation, Forms" the grounds and forms of control and the behavior of subjects (shareholders, financial institutions and organizations, etc.) in the relevant forms of control are considered.

Corporate control in the broad sense of the word, it is a set of opportunities to benefit from the activities of a corporation, which is closely related to such a concept as “corporate interest”.

Corporate governance is a permanent, successive provision of corporate interests and is expressed in corporate control.

The grounds for establishing corporate control may be:

Formation of an extensive and connected technological, industrial, marketing and financial chain;

Resource concentration;

Consolidation of markets or the formation of new markets, expansion of the share of corporations in the existing market;

Consolidation / formation of new markets or expansion of the corporation's share in the existing market;

Protecting the interests of the owner of capital, strengthening the position of managers, i.e. redistribution of rights and powers of subjects of corporate control;

Removal of competing corporations;

Increasing the size of the property, etc.

These most widespread bases operate throughout the history of joint-stock companies. The influence and role of each of them varies with time and economic conditions. However, the existence of grounds for establishing corporate control does not yet mean its actual implementation. In order for the existing structure of control to be changed, there must be accumulated objective factors providing such a change.

Control is associated with the right to govern. own capital joint-stock companies, technological process, cash flows. In this sense, participation in the capital of a corporation, as well as the possession of licenses, technologies, scientific and technical developments, increase the possibilities of control. Access to financial resources plays an important role external financing. For large joint-stock companies, there is a great dependence on sources of money capital, and therefore the institutions that ensure its concentration play a crucial role in strengthening corporate control.

At the same time, the interaction of a joint-stock company with other corporations is expressed in competition and rivalry of “corporate interests”. Different corporate interests, colliding, lead to the modification of corporate control and corporate governance objectives.

In turn, such a category as the motivation of corporate control is associated with the accumulation and concentration of opportunities that ensure corporate governance, through which the satisfaction of corporate interests is achieved. However, the motivation for control does not always come from the interests of some given corporation; this motivation can feed on the interests of other, competing corporations. It is also true that in the desire for control, interests external to the corporation can be traced, but at the same time they are quite close and “friendly”.

Consider the forms of corporate control: shareholder, managerial and financial, each of which is represented different categories legal entities and individuals.

Shareholder control represents the ability to accept or reject shareholders with required amount votes, certain decisions. Is primary form control and reflects the interests of the shareholders of the company.

The implementation of corporate control, primarily shareholder control, makes it possible to make the investment process as direct as possible without the participation of credit institutions. However, the development of direct forms of investment complicates the individual investment choice, forcing a potential investor to seek qualified consultants and additional information. That is why the history of the corporation is constantly connected, on the one hand, with the maximum democratization of investment forms, and on the other hand, with an increase in the number of financial intermediaries represented by financial institutions.

Management control represents the ability of individuals and / or legal entities to ensure the management of the economic activity of the enterprise, the succession management decisions and structures. It is a derivative form of corporate control from shareholder control.

Financial control represents an opportunity to influence the decisions of a joint-stock company by using financial instruments and special funds.

The role of credit financial institutions consists in providing the corporation with financial resources, a mechanism for the circulation of funds. They either represent the ultimate owners of capital, acquiring shareholding control rights, shares, or lend to the enterprise from funds borrowed from the owners of cash savings. In both cases, there is an expansion of the direct sources of financing of society.

Thus, the primary function of credit and financial institutions is to lend to society. Financial control is formed on the basis of credit relations. Because of this, financial control is opposed to joint-stock control, as it is formed in the process of choosing between own and external sources of financing for a joint-stock company. The dependence of a joint-stock company on external sources of financing, as well as the expansion of such sources, increases the importance of financial control.

The development of credit and financial institutions and organizations and the expansion of their role in financing business entities leads to the development of relations of control. The latter become more and more complex, being distributed over different levels. In the economy, a situation of universal dependence and responsibility is being formed:

corporations ---- before the shareholders, which may be large financial and credit organizations ---- before the owners of savings ---- before the corporation.

Especially the "democratization" of corporate control is facilitated by the development of pension and insurance savings systems in society. Private non-state pension funds, formed on the basis of a large joint-stock company, accumulate significant long-term financial resources that can be invested in the equity capital of corporations. From an economic point of view, pension funds are owned by their members, i.e. corporation employees. These funds are able to accumulate significant amounts of money and thus contribute to the development of shareholder control. Services for professional management The assets of pension funds are usually provided by financial institutions.

Similar situations develop in insurance companies.

In practice, on the one hand, there is a constant desire to unite all forms of control, on the other hand, the process of concentration of certain forms of control in different entities leads to a certain democratization of corporate control as a whole.

Establishing control over a corporation through a significant increase in both shareholder and financial control requires the diversion of significant financial resources. Wanting to establish control over a certain corporation, fund (bank) managers find themselves in a situation of a “conflict of interest”: clients and corporate ones. To avoid this, the managers themselves or state institutions establish certain restrictions on the implementation of the corporate interests of those financial organizations that are responsible to the broad masses of individual owners of the funds accumulated by these organizations. The state determines the framework for the participation of financial institutions in corporate control.

Topic "Boards of Directors and Executive Bodies of Issuers» schematically presents the structure of the board of directors and the characteristics of an independent board of directors in accordance with the OECD recommendations.

One of the internal mechanisms of control over the activities of management, designed to ensure the observance of the rights and interests of shareholders, is the Board of Directors, which is elected by the shareholders. The board of directors, in turn, appoints the executive management of the corporation, which is accountable for its activities to the board of directors. Thus, the board of directors is a kind of intermediary between the management and shareholders of the corporation, regulating their relations. In the Canadian and American systems, there is a practice of insuring board members against unexpected liability.

Schematically, the structure of the board of directors of a company is as follows (for example, in Canada):

1/3 - management;

Combining the positions of CEO and Chairman of the Board of Directors;

Leadership in corporate strategy - it is necessary, together with management, to develop a system of benchmarks to assess the success of the corporation's strategic plan, to ensure a collective understanding of the quality and reliability of decisions, without reducing the level of openness of the discussion of board members;

Active control over the activities of management - the board should be engaged in monitoring, motivating and evaluating the activities of management;

Independence - the objectivity of the board's judgments on the state of corporate affairs either due to the greater participation of board members - external directors, or the appointment of a person who does not belong to the management circle to the position of chairman of the board, the appointment of an independent "leader" of the board. Creation of specialized committees consisting exclusively of external directors (in the field of audit);

Control over the implementation of the audit - the board is responsible for ensuring openness and access to financial information, which requires the analysis and approval of the annual report, periodic interim reporting, and also assumes responsibility for the corporation's compliance with laws;

Control over the appointment of members of the board of directors - participation in the discussion of management when choosing members of the board at the annual meeting of shareholders does not have a decisive influence. In some OECD countries, this task is increasingly controlled by non-management board members;

Accountability to shareholders and society - it is necessary to assess and develop the internal and external "civil" responsibility of the corporation (corporate ethics);

Regular self-evaluation - through the establishment and implementation of performance criteria for its members and the self-evaluation process.

These seven principles relating to the role of the board should serve as the basis for company-specific initiatives to improve corporate governance.

In Russian practice, if you own 70% of the company's shares, you can add 7 members to the board of directors out of 9.

Among the criteria that apply to independent directors, the following can be distinguished:

Higher education, Doctor of Sciences;

Experience in a similar enterprise (for example, in Canada - 10 years);

Age up to 60 years (in Canada - 64-67 years);

Does not own any shares of this corporation;

Loyalty to management, i.e. independence of judgment and expression.

So, for example, in the board of directors of the Krasny Oktyabr confectionery factory, out of 19 members of the board of directors, 6 are independent.

Both in the literature and in practice, among the most common causes of crises in an enterprise, management errors are singled out. There is a relationship between the number of independent directors and crisis monitoring: the smaller the quota of independent directors on the board of directors, the greater the likelihood of a crisis in management, and vice versa.

It should be noted that many issuers do not have provisions regulating the election and composition of boards of directors, establishing requirements for the competence of members of boards of directors, their independence, and for the forms of representation of small shareholders and external investors on the board of directors. Often there are situations when, in violation of the law, more than half of the board of directors consists of persons who are simultaneously members of the collegial executive body, and even meetings of these management bodies are held jointly.

Members of boards of directors, representing the interests of small shareholders or outside investors, are often excluded from objective information about the issuer, which is necessary for the effective exercise of their powers. The existing procedures for convening and holding meetings of the board of directors for most Russian issuers do not contain requirements for the procedure, timing and volume of information provided to members of the board of directors for decision-making, there are no criteria for evaluating the performance of members of the board of directors and executive bodies. As a result, neither the remuneration of the members of the board of directors and executive bodies, nor their liability in any way depend on the results of the financial and economic activity of the issuer.

At the same time, there are no specific rights of members of the board of directors, which does not allow members of the board of directors - minority representatives or independent directors - to receive the information necessary to exercise their powers.

Neither the charters nor internal documents of issuers, as a rule, contain a clear list of duties of members of the board of directors and executive bodies, which does not allow for the full implementation of legislative norms establishing liability for failure to fulfill such duties. In case of violations committed by the directors and managers of the corporation, shareholders should be able to bring a claim against the manager in bad faith, but in practice this rule is practically not applied.

Small shareholders face significant challenges in seeking legal protection against managerial misconduct, in particular the need to pay significant government fees.

According to the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, the board of directors of a company has the right to temporarily remove managers who, in its opinion, have been at fault, without waiting for the extraordinary meeting shareholders. This will, in our opinion, protect the rights of major shareholders. In addition, Art. 78 of the Law expands the list of major transactions (including loans, pledges, credits and guarantees) related to the acquisition, alienation or the possibility of alienation by the company of 25% or more of property at the book value as of the last reporting date (except for purchase and sale transactions, and also transactions with placement by means of subscription (realization) of ordinary shares of the company). The general meeting and the board of directors will now make a decision not to commit, but to approve a major transaction.

On topic: "Peculiarities of corporate governance in the transitional economy of Russia" the distinctive features of the national model of corporate governance are highlighted. Institutional and integration trends in the process of market transformations in Russia have led to the formation of a corporate sector, including large industrial and industrial-commercial joint stock companies, financial and industrial groups, holding and transnational companies, which to a greater extent determine the leading role in ensuring the country's economic growth.

The distinguishing features of the corporate governance system in Russia at present are the following:

Relatively high proportion of managers in large enterprises compared to world practice;

Rather low share of banks and other financial institutional investors;

In fact, there is no such national group of institutional investors as pension funds, which are the most important market players in developed countries with market economies;

The undeveloped securities market ensures low liquidity of the shares of most enterprises and the impossibility of attracting investments from the small business sector;

Enterprises are not interested in ensuring a decent reputation and transparency of information due to the underdevelopment of the stock market;

Relationships with creditors or shareholders are more important to business leaders than relationships with owners;

The most important feature is the "opacity" of property relations: the nature of privatization and the post-privatization period has led to the fact that it is virtually impossible to draw a clear line between the real and nominal owners.

A change in the strategy of some Russian companies in the direction of ensuring a system of financial “transparency” resulted in an excessive increase in the costs of the transition to international standards financial statements (IFRS), or "generally accepted accounting principles" (GAAP). In Russia, such companies as Gazprom, RAO UES of Russia, Yukos and others were among the first to make this transition. The reform of the accounting and financial reporting system will require significant material costs and time.

It should be noted that among the important factors that influence the formation of the national model of corporate governance, the following can be distinguished:

The structure of shareholding in a corporation;

Specificity financial system in general, as a mechanism for transforming savings into investments (types and distribution of financial contracts, the state of financial markets, types of financial institutions, the role of banking institutions);

The ratio of sources of financing of the corporation;

Macroeconomic and economic policy in the country;

Political system (there are a number of studies that draw direct parallels between the device political system"voters - parliament - government" and the corporate governance model "shareholders - board of directors - managers");

History of development and modern features of the legal system and culture;

Traditional (historically formed) national ideology; established business practices;

Traditions and degree of state intervention in the economy and its role in regulating the legal system.

A certain conservatism is characteristic of any model of corporate governance, and the formation of its specific mechanisms is due to the historical process in a particular country. This means, in particular, that one should not expect rapid changes in the corporate governance model following any radical legal changes.

It should be emphasized that Russia and other countries with economies in transition are currently characterized only by formative and intermediate models of corporate governance, which depend on the chosen privatization model. They are characterized by a fierce struggle for control in a corporation, insufficient protection of shareholders (investors), insufficiently developed legal and state regulation.

Among the most important specific problems inherent in most countries with economies in transition and creating additional difficulties in the formation of corporate governance and control models, the following should be singled out:

Relatively unstable macroeconomic and political situation;

The unfavorable financial condition of a large number of newly created corporations;

Insufficiently developed and relatively inconsistent legislation in general;

Dominance of large corporations in the economy and the problem of monopoly;

In many cases, there is significant initial dispersion of share ownership;

The problem of “transparency” of issuers and markets and, as a result, the absence (underdevelopment) of external control over the managers of former state-owned enterprises;

Weak domestic and foreign investors who are afraid of many additional risks;

Absence (oblivion) ​​of traditions corporate ethics and culture;

Corruption and other criminal aspects of the problem.

This is one of the fundamental differences between the "classical" models that have developed in countries with developed market economies, which are relatively stable and have more than a century of history.

The direct and automatic transfer of foreign models to the “virgin” soil of transitional economies is not only pointless, but also dangerous for further reforms.

The Russian model of corporate governance is the following “Management Triangle”:

The essential point is that the board of directors (supervisory board), exercising the function of control over management, must itself remain an object of control.

For the majority of large Russian joint-stock companies, the following groups of participants in relations that make up the content of the concept of "corporate governance" can be distinguished:

Management, including the sole executive body of the issuer;

Major shareholders (owners of a controlling stake in voting shares of the company);

Shareholders owning an insignificant number of shares (“minority” (small) shareholders);

Owners of other securities of the issuer;

Creditors who are not owners of the issuer's securities;

State authorities (of the Russian Federation and constituent entities of the Russian Federation), as well as local governments.

In the process of corporate management activities a “conflict of interest” arises, the essence of which is not always correctly understood by the managers and employees of the enterprise: it does not consist in the very fact of violating the “corporate interest” in favor of an individual or group, but in the possibility of a situation when the question arises of choosing between the interest of the corporation as a whole and other interest. In order to avoid such a conflict, the task of corporate governance is to prevent the likelihood of changes in the hierarchy of interests and target functions of participants by managerial, technological, organizational means.

QUESTIONS FOR SELF-CHECKING

1. Define the essence and elements of corporate governance.

2. Expand the content of the basic theories of corporate governance.

3. List the main characteristics of the Anglo-American, German and Japanese models of corporate governance.

4. Describe the basic principles of corporate governance and evaluate the effectiveness of their operation in the management of Russian joint-stock companies.

5. Define the main forms of corporate control.

6. What are the main characteristics of an independent board of directors? Determine, in your opinion, the most acceptable of them for the board of directors of Russian companies.

7. Expand the features of the national model of corporate governance. What are the main difficulties of its formation?

1. Bakginskas V.Yu., Gubin EM. Management and corporate control in joint-stock companies. M.: Jurist, 1999.

2. Bocharov V.V., Leontiev V.E. Corporate Finance. St. Petersburg: Peter, 2002.

3. Lvov Yu.A., Rusinov V.M., Saulin A.D., Strakhova O.A. Management of a joint stock company in Russia. M .: OAO Printing House Novosti, 2000.

4. Management modern company/ / Ed. B. Milner, F. Liis. M.: INFRA-M, 2001.

5. Khrabrova I.A. Corporate Governance: Integration Issues "Affiliates, Organizational Design, Integration Dynamics". M.: Ed. house "Alpina", 2000.

6. Shein V.I., Zhuplev A.V., Volodin A.A. Corporate management. Experience of Russia and the USA. M .: OAO Printing House Novosti, 2000.

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Tutorial output:

Management Fundamentals: modern technologies. Teaching aid/ ed. prof. M.A. Chernyshev. Moscow: ICC "MarT", Rostov n / D: Publishing Center "MarT", 2003-320 p. (Series "Economics and Management".).

Currently, there is no single definition of "corporate governance". In theoretical terms, corporate governance can be discussed in various aspects, so there are many definitions of this concept.

Corporate Governance- a set of economic and administrative mechanisms through which the rights of joint-stock property are exercised and the structure of corporate control is formed; a system of interactions between the company's management, its board of directors, shareholders and other stakeholders to implement their interests.

In the Soviet encyclopedic dictionary management is considered as "an element, a function of organized systems of various nature (biological, social, technical), ensuring the preservation of their specific structure, maintaining the mode of activity, the implementation of their programs and goals." Social management - the impact on society in order to streamline it, maintain quality specifics, improve and develop. Distinguish between spontaneous control, the impact of which on the system is the result of the interaction of various forces, a mass of random individual acts, and conscious control, carried out public institutions and organizations (state, etc.).

Corporate governance is a kind of social governance. A corporation is a certain organized system, an element of which is management. Its essence is the impact on the corporation as a system public relations(organized system) in order to streamline them, preserve their specificity.

Corporate management is a conscious management, which is carried out by bodies specially formed in the corporation. Moreover, the bodies of the corporation are formed in the manner prescribed by law, and the law determines the delimitation of competence between these bodies. Therefore, corporate management is, first of all, management carried out on the basis of the law and internal documents of the corporation adopted in accordance with the law.

Thus, in a narrow sense, corporate governance (corporation management) is an impact on a corporation as an organized system, carried out by specially formed bodies acting within their competence.

In accordance with Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes obligations through its bodies acting in accordance with the law and other legal acts, and founding documents. The bodies of a legal entity form and express its will, manage its activities.

Bodies of a legal entity - management bodies. So, the federal law dated December 26, 1995 N 208-FZ "On joint-stock companies" provides that the charter of the company must contain the structure and competence of the management bodies of the joint-stock company, the procedure for their decision-making.

In a broad sense, corporate governance is the relationship within the corporation and its relationship with the outside world, i.e. a system of relations between the governing bodies and the owners of the securities of the corporation (shareholders, owners of bonds and other securities), between the corporation and state bodies, as well as other interested parties, one way or another involved in the management of the issuer (company) as a legal entity.

The essence of corporate governance in a broad sense is the process of finding a balance between the interests of various corporation participants: shareholders and management, individual groups of persons and the corporation as a whole by implementing certain standards of behavior (ethical, procedural) accepted in the business community by the corporation participants.

The corporate governance model is a classic triangle: shareholders (general meeting) - board of directors (supervisory board) - sole (collegial) executive body of the company.

In the literature, the participants in the system of corporate relations are divided into two large groups: the joint-stock company itself and the shareholders of this company. These groups include:

• - management of the corporation (issuer);
• - large shareholders (majority);
• - minority shareholders (owning a small number of shares);
• - holders of other securities of the issuer;
• - creditors and partners who are not owners of the issuer's securities;
• - federal executive authorities, executive authorities of the constituent entities of the Russian Federation, as well as local governments.

The interaction of these groups gives rise to the main conflicts in the field of corporate governance, which lead to the violation of the rights and interests of each of them. In addition, it must be taken into account that shareholders can be both individuals and legal entities, which complicates the system of corporate relations, makes it quite complex, with many different connections between the elements of this system.

Different members of the corporation have their own different interests. The difference in the interests of participants within the same economic society is not yet a conflict. But, as soon as the carriers of different interests take certain actions aimed at the realization of their interests, at achieving goals that are different from the goals of other participants in corporate relations, a conflict arises, i.e. clash, disagreement, confrontation of the parties.

The conflict of interest in a corporation is primarily related to the separation of ownership from management. Managers in corporations are not always their owners. The interests of managers are to maintain the strength of their position, and their efforts are concentrated on the operational activities of the corporation. The discrepancy between the interests of managers and owners of shares, large and small shareholders, managers and state bodies is the main problem in corporate relations.

Corporate Governance is a set of measures implemented by both foreign and Russian companies to protect the interests of owners and, ultimately, to increase the value of the company and attract investment.

If in the West corporate conflicts are mainly expressed in the contradiction between the interests of managers and shareholders, then in Russia there is often an infringement of the rights of minority shareholders by majority shareholders.

In the management of corporate relations, a certain balance of interests of the majority and minority shareholders, the society itself and the state must be found. Such an impact on corporate relations, which provides a balance of interests of various participants in these relations, minimizes conflicts of their interests, ensures the sustainable existence of corporate relations, and their progressive development is corporate governance. Therefore, in the broadest sense, corporate governance includes in general all relations that in one way or another affect the position of shareholders and the behavior of the joint-stock company itself. In such a broad sense, corporate governance is identical to corporate behavior, i.e. interaction of participants in corporate relations between themselves and the outside world - the business community, the local population, government agencies.

Let's pay attention to the principles of corporate governance. The principles of corporate governance are the initial principles underlying the formation, functioning and improvement of the company's corporate governance system.

The main principles of corporate governance were set out in the OECD Corporate Governance Principles, signed by ministers at the OECD Council Ministerial meeting on 26-27 May 1999.

The OECD Corporate Governance Principles are advisory in nature and can be used by governments as a starting point for assessing and improving existing legislation, as well as by corporations themselves to develop corporate governance systems and best practices.

In accordance with the Principles, the corporate governance structure of a company should ensure:

• - protecting the rights of shareholders;
• - equal treatment of shareholders;
• - recognition of the rights of interested parties provided for by law;
• - timely and accurate disclosure of information on all material issues relating to the corporation;
• - effective control of the administration by the board (supervisory board), as well as the accountability of the board to shareholders.

Economic factors are decisive in the formation of legislation, including legislation in the field of corporate governance.

It is known that "the legislature does not create the law - it only discovers and formulates it"; public relations emerge from the socio-economic relations that they fix and shape. Socio-economic relations are formed objectively, but as they are known ("discovered"), one can approach the conscious management of them. In other words, society (including the economy) can only be influenced indirectly, creating conditions for its development in the required direction. In relation to the economy, this is the creation of a competitive environment in which entrepreneurial activity, the establishment of common market "rules of the game", stable public requirements.

In order to improve corporate governance, the Ministry of Economic Development of Russia at the end of 2003 came up with the initiative to create Expert Council on corporate governance. The most authoritative experts in the field of corporate governance, leading representatives of schools of corporate and financial law in Russia are included as members of the Council. The functions of the Chairman of the Council are assigned to the Deputy Minister. The tasks of the Council are to conduct an independent peer review normative legal acts adopted in the Russian Federation and development of recommendations in the field of corporate governance.